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LEGAL  RECREATIONS. 


VOL.     II. 


ri 


ufio^itie^   of   Will^. 


THE 


CURIOSITIES 


JCND 


LAW  OF  WILLS. 


BY 

JOHN  PROFFATT,  LL.B., 

Counaellor-at-law,  author  of  "  Woman  before  the  Law." 


"  Wills,  and  the  construction  of  them,  do  more  perplex  a  man  than 
any  other  matter ;  and  to  make  a  certain  construction  of  them  exceedeth 
jurisprudeTdum  artem." — Coke. 


SAN  FRANCISCO: 

SuMNEK  Whitney  &  Co. 

1876. 


COPYKiaHT   187S. 

BT 

JOHN  PKOPPATT. 


TO 

^  TABLE  OF  CONTENTS. 


Introduction ...       9 

CHAPTER  I. 
Origin  and  History  op  Wills 29 

CHAPTER  n. 

Form  and  Requisites  of  Wills 41 

Section  1.     Nuncupative  Wills. 
2.     Written  Wills. 

CHAPTER  in. 
Testamentary  Capacity 68 

Section  1.  Incapacity  as  to  Age. 

2.  Physical  or  Mental  Incapacity. 

3.  Senile  Dementia. 

4.  Coverture. 

CHAPTER  rV. 

Legacies 93 

"^  Section  1.  As  to  their  Quality. 

2.  Legacies  Vested  or  Contingent. 

3.  Conditional  Legacies. 

4.  Payment  of  Legacies. 

5.  The  Person  who  may  take. 


756432 


6  TABLE    OF   COJTTENTS. 

CHAPTER  V 

Limits  to  Testamentaey  Disposition.    ...    130 

CHAPTER  VI. 

Revocation  op  Wills 152 

CHAPTER  Vn. 
Wills  as  Affected  by  Domicile 173 

CHAPTER  VHI. 
CONSTEUCTION  OF   WiLLS 185 


PREFACE. 


It  is  far  from  the  thoughts  of  the  publishers  or 
the  author  of  this  book  to  provide  a  work  merely 
for  entertainment;  it  is  hoped  the  title  will  not 
mislead  so  as  to  suggest  this  idea. 

While  it  is  sought  to  make  it  entertaining  and  the 
style  animated,  in  the  selection  of  such  apt  and 
striking  cases  as  wUl  illustrate  and  expound  the 
principles  and  rules  of  law  relating  to  wills,  the 
main  idea  has  been  to  make  it  useful  and  reliable 
as  a  systematic,  clear,  and  concise  summary  for  the 
student  and  lawyer,  and  interesting  to  all  classes  of 
readers. 

It  is  not  expected  that  it  will  be  used  as  a  work  of 
reference  on  the  various  subjects  connected  with 
wills ;  but  it  is  hoped  it  will  be  found  so  accurate 
and  practical  as  to  make  it  serve  advantageously  for 
a  manual  on  this  subject,  so  that  a  careful  reading 
of  it  -will  give  a  correct  knowledge  of  the  law  relat- 
ing to  this  interesting  and  important  subject. 

It  could  not  be  expected  that,  in  a  work  of  a 
somewhat  general  character,  the  details  of  the  stat- 
ute law  of  the  several  States  would  be  given  ;  but, 
as  far  as  practicable,  the  law  has  been  noticed,  so 

[71 


8  PREFACE. 

far  as  it  affected  the  formalities  of  execution, 
attestation,  and  proof.  Many  of  the  principles  of 
the  law  relatinjj  to  wills  are  of  such  a  general  and 
well  established  character  as  to  be  adapted  to  every 
locality,  and  therefore  it  is  believed  this  work  will 
not  have  a  mere  local  utility.  As  far  as  possible, 
every  effort  has  been  made  to  have  it  accurate ; 
that  there  may  be  some  minor  inaccuracies  is  inevi- 
table, but  none,  it  is  hoped,  of  a  serious  character. 


INTRODUCTION. 


The  making  of  a  last  will  and  testament  is  one  of 
the  most  solemn  acts  of  a  man's  life.  Few  are  so 
frivolous  and  indifferent  as  not  to  realize  the  import- 
ance of  an  act  which  is  to  live  after  them,  and 
survive  long  after  the  hand  that  traced  it  has  min- 
gled with  its  kindred  dust.  They  feel  that,  however 
regardless  people  have  been  of  their  sayings  and 
doings,  however  trivial  and  unimportant  have  been 
their  acts  in  the  eyes  of  others,  a  certain  attention, 
respect,  and  weight  will  be  given  to  so  deliberate 
and  serious  an  act  as  a  man's  will.  They  realize, 
when  making  it,  that  they  are  exercising  one  of  the 
highest  and  most  important  privileges  society  has 
granted  to  the  individual — ^the  right  to  speak  and 
order  as  to  the  disposition  of  his  effects  and  prop- 
erty after  he  has  ceased  to  live.  Accordingly,  men 
who  have  been  rudely  treated  by  the  world,  whose 
infirmities  and  eccentricities  have  subjected  them  to 
its  ridicule,  whose  words  would  command  no  hear- 
ing from  their  fellow-men,  have  eagerly  availed 
themselves  of  this  last  and  important  opportunity 
to  freely  speak  their  mind,  to  vent  their  spleen  on 
ungrateful  friends,  to  deride  an  unfeeling  world, 
and  in  a  cynical  manner  to  express  without  reserve 
opinions  about  persons  and  things,  which  could 
have  no  hearing  while  they  lived,  but  in  a  last  will 

[9] 


10  CTTEIOSITIES    OF   WILLS. 

and  testament  will  command  the  attention  due  to 
the  solemnity  of  the  occasion.  In  a  word,  they  take 
this  method  to  give  a  parting  hit  to  an  unfriendly 
and  unsympathizing  world. 

It  will  be  instructive,  as  well  as  interesting,  as  a 
phase  of  human  nature,  to  refer,  by  way  of  intro- 
duction, to  some  curious  wills,  which  may  form  an 
inviting  prelude  to  a  more  serious  treatment  of  the 
subject. 

As  might  be  anticipated,  many  wills  reflect  the 
singular  notions,  the  eccentricities  and  prejudices 
of  the  makers.  In  many  cases,  the  testator  speaks 
his  mind  so  freely  that  his  opinion  of  others  really 
amounts  to  a  libel ;  again,  his  antipathies  or  his 
affections  are  as  freely  exhibited ;  while  the  instances 
are  not  rare  in  which  he  bequeaths  to  posterity  the 
benefit  of  his  religious  opinions. 

Testators  often  give  directions  as  to  the  place  and 
manner  of  their  burial,  as  well  as  the  expenses  of 
their  funeral  pageant.  In  one  case,  a  testator  de- 
sired to  be  buried  in  a  space  between  the  graves  of 
his  first  and  second  wives.*  Mr.  Zimmerman,  whose 
will  was  proved  in  1840,  in  England,  accompanied 
the  directions  for  his  funeral  with  something  like  a 
threat  in  case  they  were  not  carried  out.  In  his 
will  he  says :  "  No  j^ei'son  is  to  attend  my  corpse  to 
the  grave,  nor  is  any  funeral  bell  to  be  rung ;  and 
my  desire  is  to  be  buried  plainly  and  in  a  decent 
manner;  and  if  this  he  not  done,  I  will  come  again 

•Illustrated  London  News,  October  18th,  1873.  I  have  selected  from 
this  reliable  journal  many  of  the  examples  of  curious  wills  I  give  in 
this  introduction,  taken  from  Doctors'  Commons,  London. 


INTBODUCTIOlSr.  ll' 

— that  is  to  say,  if  I  can.''''  The  Countess  Dowager 
of  Sandwich,  in  her  will,  written  by  herself  at  the 
age  of  eighty,  proved  in  November,  1862,  expresses 
her  wish  to  be  buried  decently  and  quietly — no 
undertakers'  frauds.,  or  cheating ;  no  scarfs,  hat- 
hands,  or  nonsense.  In  a  similar  manner,  Mrs. 
Kitty  Jenkyn  Packe  Reading,  whose  will  was  proved 
in  April,  1870,  gives  explicit  directions  as  to  avoid- 
ing useless  expense  at  her  funeral.  She  died  abroad, 
and  directed  that  her  remains  be  put  into  a  leaden 
coffin,  then  enclosed  in  a  wooden  coffin,  and  to  be 
taken  as  freight  to  her  residence,  Branksome  Tower, 
in  England.  She  foresaw  that  in  this  way  the 
remains  could  not  enter  the  house  through  the  door, 
and  directed  a  window  to  be  taken  out  of  a  certain 
room,  in  order  to  permit  her  remains  to  enter. 

The  memory  of  the  jars  and  ills  of  domestic  life 
has  so  embittered  a  man's  mind,  that  if  the  strife 
was  unequal  during  his  lifetime,  he  hopes  to  turn 
the  scale  in  his  favor  when  dying,  and  in  his  will 
have  a  last  word,  and  in  this  way  cut  off  his  spouse 
from  her  inalienable  prescriptive  right  of  having 
the  last  word.  A  man,  then,  has  been  known  to 
call  his  wife  "  jealous,  disaffectionate,  reproachful, 
and  censorious."  And  again,  a  wife's  faults  and 
shortcomings  have  been  published  to  the  world,  and 
children  must  be  mortified  to  know  that  in  the  pub- 
lic documents  of  the  country  allusion  is  conspicu- 
ously made  to  the  failings  of  their  mother,  as  when 
a  husband  perpetuates  his  wife's  "  unprovoked,  un- 
justifiable fits  of  passion,  violence,  and  cruelty," 
The  following  words  are  used  by  an  individual  who 


12  CTIBlOSITrES   OF   WILLS. 

died  in  London  in  June,  1791,  in  reference  to  his 
wife :  "  Seeing  that  I  have  had  the  misfortune  to 
be  married  to  the  aforesaid  Elizabeth,  who  ever 
since  our  union  has  tormented  me  in  every  possible 
way ;  that  not  content  with  making  game  of  all  my 
remonstrances,  she  has  done  all  she  could  to  render 
my  life  miserable ;  that  Heaven  seems  to  have  sent 
her  into  the  world  solely  to  drive  me  out  of  it ;  that 
the  strength  of  Samson,  the  genius  of  Homer,  the 
prudence  of  Augustus,  the  skill  of  Pyrrhus,  the  pa- 
tience of  Job,  the  philosophy  of  Socrates,  the  sub- 
tlety of  Hannibal,  the  vigilance  of  Hermogenes, 
would  not  suffice  to  subdue  the  perversity  of  her 
character ;  that  no  power  on  earth  can  change  her, 
seeing  we  have  lived  apart  during  the  last  eight 
years,  and  that  the  only  result  has  been  the  ruin  of 
my  son,  whom  she  has  corrupted  and  estranged 
from  me.  "Weighing  maturely  and  seriously  all 
these  circumstances,  I  have  bequeathed,  and  I  be- 
queath to  my  said  wife,  Elizabeth,  the  sum  of  one 
shilling,  to  be  paid  unto  her  within  six  months 
after  my  decease."* 

Happily,  the  ills  and  strifes  of  conjugal  life  are 
not  the  most  frequently  remembered  incidents  of  a 
man's  life;  its  felicities,  its  joys  and  tender  experi- 
ences, the  fidelity  and  devotion  of  a  true  partner, 
are  often  most  vividly  and  fondly  cherished  at  deatli, 
and  touchingly  alluded  to  in  a  man's  last  will.  In  this 
manner,  Sharon  Turner,  the  eminent  author  of  the 
"  History  of  the  Anglo-Saxons,"  and  other  works, 
who  died  in  London  in  1847,  at  the  age  of  seven ty- 

*  niustxated  London  News,  Febroary  2l8t,  1874. 


INTEODUCTION.  13 

nine,  and  whose  will  was  proved  in  that  year,  de- 
lights to  speak  of  his  wife's  affection,  and  is  partic- 
ularly solicitous  that  she  should  not  suffer  in  her 
l^ersonal  ajipearance  by  the  uuskillfulness  of  the 
persons  who  liad  taken  her  portrait.  Speaking  of 
his  wife,  who  was  dead,  he  says :  "  It  is  my  com- 
fort to  have  remembered  that  I  have  passed  with 
her  nearly  forty-nine  years  of  unabated  affection 
and  connubial  happiness,  and  yet  she  is  still  living, 
as  I  earnestly  hope  and  believe,  under  her  Saviour's 

care,  in  a  superior  state  of  being 

None  of  the  portraits  of  my  beloved  wife  give 
any  adequate  representation  of  her  beautiful  face, 
nor  of  the  sweet,  and  intellectual,  and  attractive 
appearance  of  her  living  features,  and  general  coun- 
tenance, and  character." 

Too  often  testators  place  all  the  obstacles  they 
can  in  the  way  of  their  widows  marrying  again,  as 
will  appear  more  fully  in  another  part  of  this  work. 
The  following  instance  is  one  of  the  few  exceptions, 
and  it  contains,  besides,  the  most  graceful  tribute 
to  a  wife's  character,  as  given  in  a  will,  that  we  know 
of.  Mr.  Granville  Harcourt,  whose  will  was  proved 
in  March,  1862,  thus  speaks  of  his  wife :  "  The  un- 
speakable interest  with  which  I  constantly  regard 
Lady  Waldegrave's  future  fate  induces  me  to  advise 
her  earnestly  to  unite  herself  again  with  some  one 
who  may  deserve  to  enjoy  the  blessing  of  her  soci- 
ety during  the  many  years  of  her  possible  survival 
after  my  life.  I  am  grateful  to  Providence  for  the 
great  happiness  I  enjoy  in  her  singular  affection; 
and  I  pray  and  confidently  hope  she  may  long  con- 
c.  OP  w.— a. 


14  CURIOSITIES    OF    WILLS. 

tinue  to  possess  the  same  esteem  and  f  riendshiiJ  of 
those  who  are  intimate  with  her,  and  can  appreciate 
her  admirable  qualities,  and  the  respect  of  all  with 
whom,  in  any  relation  of  life,  she  is  connected."* 

Ladies  have  not  the  same  opportunity  and  jirivi- 
lege  of  restraining  their  husbands  from  marrying 
again,  and  we  cannot  call  to  mind  a  single  case  of 
a  married  woman  attempting  to  do  so  in  a  will,  but 
on  the  contrary,  we  have  the  case  of  a  lady  recom- 
mending marriage  to  her  husband.  Mrs.  Van  Ilan- 
rigli,  whose  will  was  proved  in.  December,  1868, 
leaves  all  her  property,  Avhich  aj^pears  to  have  been 
considerable,  to  her  husband.  Endorsed  on  the 
back  of  the  will  is  a  memorandum,  stating  that  she 
wishes  her  clothes  to  be  sold  to  pay  her  funeral  ex- 
penses, which  are  to  be  as  small  as  possible,  and 
after  commending  her  husband  to  the  care  of  her 
brother,  she  adds:  "It  is  also  my  earnest  wish 
that  my  darling  husband  should  marry,  ere  long,  a 
nice,  pretty  girl,  who  is  a  good  housewife,  and 
above  all,  to  be  careful  that  she  is  of  a  good  temper." 

Theologians  have  speculated  and  differed  upon 
the  nature  of  Heaven's  happiness,  but  John 
Starkey,  whose  will  was  proved  in  November, 
1861,  had  no  doubt  of  its  character,  for  he  states : 
"  The  remainder  of  my  wealth  is  vested  in  the  af- 
fection of  my  dear  wife,  with  whom  I  leave  it  in 
the  good  ho^je  of  resuming  it  more  pure,  bright, 
and  precious,  where  neither  moth  nor  rust  doth 
corrupt,  and  where  there  are  no  railways  or  mone- 
tary panics  or  fluctuations  of   exchange,  but  the 

*  iiiuBtrated  Jjoudon  News,  Kovember  8th.  1873. 


INTRODUCTION.  15 

Steadfast  though  progressive  and  unspeakable  riches 
of  glory  and  immortality." 

The  disappointments  of  life,  the  inconstancy  of 
friends,  and  the  slights  of  the  Avorld  have  so 
wrought  upon  some  minds  as  to  cause  them  to  re- 
cord in  a  will  their  estimate  of  all  earthly  things, 
and  enlighten  posterity  by  revealing  to  it  the  last 
impressions  of  either  a  cynic  or  a  philosopher. 
Soured  and  chagrined,  they  rail  at  what  they  deem 
the  folly  and  hypocrisy  of  the  world,  and  in  a  last 
utterance  freely  express  themselves  ujjon  subjects 
upon  which,  perhaps,  the  proprieties  of  life  made 
them  silent  while  they  lived.  The  following  docu- 
ment, penned  by  an  Earl  of  Pembroke  who  lived 
during  the  political  turmoils  of  the  seventeenth 
century,  testifies  to  a  singular  shrewdness  and 
knowledge  of  character,  with  a  considerable 
amount  of  dry  humor.  As  a  literary  and  histori- 
cal curiosity,  we  may  be  justified  in  giving  it  at 
length.  The  copy  from  which  it  is  taken  bears  the 
signature  of  the  keeper  of  the  records  in  Doctors' 
Commons,  Nathaniel  Brind,  beneath  the  Avords 
"  Concordat  cum  originalV     It  is  as  follows  : 

"  I,  Philip  V,  Earl  of  Pembroke  and  Montgom- 
ery, being,  as  I  am  assured,  of  unsound  health,  but  of 
sound  memory,  as  well  I  remember  me  that  five 
years  ago  I  did  give  my  vote  for  the  despatching  of 
old  Canterbury,  neither  have  I  forgotten  that  I  did 
see  my  king  upon  the  scaffold,  yet  as  it  is  said  that 
death  doth  even  now  pursue  me,  and,  moreover, 
that  it  is  yet  further  said  that  it  is  my  practice  to 
yield  under  coercion,  I  do  now  make  my  last  wiU 
and  testament. 


16  CURIOSITIES    OF   WILLS. 

"Imprimus:  As  for  my  soul,  I  do  confess  I 
have  often  heard  men  speak  of  the  soul,  but  what 
may  be  these  same  souls,  or  what  their  destination, 
God  knoweth ;  for  myself,  I  know  not.  Men  have 
likewise  talked  to  me  of  another  world,  which  I 
have  never  visited,  nor  do  I  know  even  an  inch  of 
the  ground  that  leadeth  thereto.  When  the  King 
was  reigning  I  did  make  my  son  wear  a  surplice, 
being  desirous  that  he  should  become  a  bishop, 
and  for  myself,  I  did  follow  the  religion  of  my 
master;  then  came  the  Scotch,  who  made  me  a 
Presbyterian ;  but  since  the  time  of  Cromwell,  I 
have  become  an  Independent.  These  are,  me- 
thinks,  the  three  principal  religions  of  the  king- 
dom. If  any  one  of  the  three  can  save  a  soul,  I 
desire  they  will  return  it  to  him  who  gave  it  to 
me. 

"  Item :  I  give  my  body,  for  it  is  j^lain  I  cannot 
keep  it,  as  you  see  the  chirurgeons  are  tearing  it  to 
pieces.  Bury  me,  therefore;  I  hold  lands  and 
churches  enough  for  that.  Above  all,  put  not  my 
body  beneath  the  church  porch,  for  I  am,  after  all, 
a  man  of  birth,  and  I  would  not  that  I  should  be 
interred  there  where  Colonel  Pride  was  born. 

"  Item :  I  will  have  no  monument,  for  then  I 
must  needs  have  an  epitaph  and  verses  over  my 
carcass — during  my  life  I  had  enough  of  these. 

"  Item :  I  desire  that  my  dogs  may  be  shared 
among  all  the  members  of  the  Council  of  State. 
With  regard  to  them,  I  have  been  all  things  to  all 
men ;  sometimes  went  I  with  the  Peers,  sometimes 
with  the  Commons.  I  hope  therefore  they  will  not 
suffer  my  poor  curs  to  Avant. 


INTEODUCTIOX.  17 

"  Item :  I  give  my  two  best  saddle-horses  to  the 
Earl  of  Denbigh,  whose  legs,  methinks,  must  soon 
begin  to  fail  him.  As  regards  my  other  horses,  1 
bequeath  them  to  Lord  Fairfax,  that  when  Crom- 
well and  his  council  take  away  his  commission,  he 
may  still  have  some  horse  to  command. 

"  Item :  I  give  all  my  wild  beasts  to  the  Earl  of 
Salisbury,  being  very  sure  that  he  will  preserve 
them,  seeing  that  he  refused  the  King  a  doe  out  of 
his  park. 

"  Item :  I  bequeath  my  chaplains  to  the  Earl  oi 
Stamford,  seeing  he  has  never  had  one  in  his  em- 
ploy, having  never  known  any  other  than  his  son 
my  Lord  Gray,  who,  being  at  the  same  time  spirit- 
ual and  carnal,  will  engender  more  than  one  mon- 
ster. 

"  Item :  I  give  nothing  to  my  Lord  Saye,  and  1 
do  make  him  this  legacy  willingly,  because  I  know 
that  he  will  faithfully  distribute  it  unto  the  poor. 

"  Item :  Seeing  that  I  do  menace  a  certain  Henry 
Mildmay,  but  did  not  trash  him,  I  do  leave  the  sum 
of  fifty  pounds  sterling  to  the  lacquey  that  shall  pay 
unto  him  my  debt. 

"  Item :  I  bequeath  to  Thomas  May,  whose  nose 
I  did  break  at  a  masquerade,  five  shillings.  My 
intention  had  been  to  give  more ;  but  all  who  have 
seen  his  history  of  the  Parliament  will  consider 
that  even  this  sum  is  too  large. 

"  Item :  I  should  have  given  to  the  author  of  the 
libel  on  women,  entitled  '  News  of  the  Exchange,' 
threepence,  to  invent  a  yet  more  scurrilous  mode  of 
maligning;  but,  seeing  that  he  insulteth  and  slan- 


18  CURIOSITIES   OF   WILLS. 

dereth  I  know  not  how  many  honest  persons,  I 
commit  the  office  of  paying  him  to  the  same  lac- 
quey who  undertaketh  the  arrears  of  Henry  Mild- 
may.  He  will  teach  him  to  distinguish  between 
honorable  women  and  disreputable. 

"  Item :  I  give  to  the  Lieutenant-General  Crom- 
well one  of  my  words,  the  which  he  must  want, 
seeing  that  he  hath  never  kept  any  of  his  own. 

"  Item  :  I  give  to  the  wealthy  citizens  of  London, 
and  likewise  to  the  Presbyterians  and  nobility, 
notice  to  look  to  their  skins,  for,  by  order  of  the 
State,  the  garrison  of  Whitehall  hath  provided  itself 
with  poniards,  and  useth  dark  lanterns  in  the  place 
of  candles. 

"  Item :  I  give  up  the  ghost." 
One  of  the  most  interesting  old  wills,  the  first 
will  registered  in  the  English  language  in  Doctors' 
Commons,  is  the  will  of  Lady  Alice  West,  proved 
in  the  year  1395. 

The  first  will  recorded  there  is  in  the  year  1383, 
and  is  in  Latin,  as  most  of  the  very  early  wills  are. 
She  was  the  widow  of  Sir  Thomas  West.  She 
begins  thus,  in  the  old-fashioned  style :  "  In  Dei 
nomine.  Amen.  On  Thursday,  that  is  to  sey,  the 
XV  day  of  the  moneth  of  Jul,  in  the  yer  of  the 
incarnacion  of  our  Lord  Ihu  Crist,  a  thousand  and 
thre  hundred  and  fourescore  and  fiftene — I,  Alice 
West,  lady  of  Hynton  Martel,  in  hool  estat  of  my 
body  and  in  good  mynde  beynge,  make  my  testa- 
ment in  the  maner  as  hit  folweth  hereafter :  In  the 
begynnyng,  I  bequethe  my  soule  to  God  Almighty 
and  to  his  moder,  Seynt  Marie,  and  to  al  the  seyntis 


tKTKODUCTION.  19 

of  heuene,  and  my  body  to  be  beiyed  in  Criscberche 
in  the  priorie  of  the  chanones  in  Hamptschire  by 
the  Newe  Forest  wher  as  niyne  auncestres  leggeth." 

The  wills  of  persons  of  distinction  were,  in  spirit, 
much  the  same  in  the  fourteenth  century  as  at 
present ;  there  are  pecuniary  and  specific  legacies 
to  relatives,  legacies  to  old  and  present  servants, 
legacies  for  charitable  purposes,  and  particular  direc- 
tions about  the  funeral  and  place  of  burial. 

Dame  Alice  West's  will  is  too  long  to  give  at 
length,  but  some  extracts,  showing  the  articles 
which  at  that  period  were  so  valuable  as  to  be  spe- 
cifically bequeathed,  the  amounts  of  the  legacies, 
and  the  persons  to  whom  they  were  left,  may  prove 
interesting. 

The  lady  commences  the  disposition  of  her  prop- 
erty as  follows :  "  Also,  I  devyse  to  Thomas,  my 
sone,  a  bed  of  tapicers  werk  with  alle  the  tapices 
of  sute,  red  of  color,  ypouthered  with  chapes  and 
scochons  in  the  corners  of  myn  auncestres  armes, 
with  that  I  bequethe  to  the  same  Thomas  the  stoffe 
longyng  thereto — that  is  to  seye,  my  best  fether- 
bed,  and  a  blue  canevas  and  a  materas  and  twey 
blankettys  and  a  peyre  schetes  of  reynes  and  sex  of 
my  best  j^ilwes." 

It  is  an  unusual  thing  in  the  present  day  to  dis- 
pose of  bedding  by  will ;  and  the  reason  is,  that 
feather-beds,  mattresses,  pillows,  blankets,  and  sheets 
are  comparatively  cheap  ;  but  in  Lady  Alice's  time 
they  must  have  been  articles  of  luxury  and  a  con- 
siderable item  in  the  dower  of  a  bride. 

The  testatrix  next  thinks  of  her  daughter-in-law : 


20  CUEIOSITIES    OP   WILLS. 

"Also  I  bequethe  to  Johane  my  sone  is  wyf,  a 
masse  book  and  alle  the  bokes  that  I  have  of  latyn, 
englisch,  and  frensch  out  take  the  forsayd  matyns 
book,  that  is  bequethe  to  Thomas  my  sone." 

We  wonder  what  books  she  had,  and  particularly 
what  English  books ;  a  list  of  them  would  be  most 
interesting.  She  could  not  have  had  many,  and 
we  cannot  suggest  what  they  were.  It  should  be 
remembered  that  this  will  was  made  more  than 
five  years  before  the  death  of  Chaucer,  and  neaily 
eighty  years  before  the  first  book  was  printed  in 
English,  and  books  in  English  must  consequently 
have  been  few  indeed.  Their  scarcity  made  them 
of  great  value;  they  were  carefully  treasured,  and 
their  future  ownership  specially  provided  for  by 
will.  'Something  might  be  said  as  to  the  education 
of  ladies  of  the  highest  class  at  that  time.  Here 
was  a  lady  possessing  books  in  English,  Latin,  and 
French,  which,  it  is  presumable,  she  could  read. 
Latin,  however,  was  the  language  of  her  religion ; 
French  was  probably  the  tongue  she  was  brought 
up  in,  and  was  the  language  of  the  court;  and 
English  was  the  language  of  her  dependents;  so 
that,  as  a  matter  of  course,  every  lady  of  rank  may 
have  been  familiar  with  the  three  languages. 

She  further  gives  certain  gifts  to  members  of  her 
family:  "To  Sir  Nichol  Clifton,  Knyght,  and  to 
Alianore  his  Avif,  my  doughter,  and  to  Thomas  Clif- 
ton here  sone,  £120,  euenliche  to  be  departed  be- 
twix  ham  thre ;  and  if  Thomas  here  sone  forsayd 
deyeth,  I  wol  that  it  torne  to  profet  of  his  fader 
and  his  moder." 


INTEODUCTION.  21 

We  should  not  expect  to  find  any  will  previously 
to  the  Reformation  without  a  legacy  to  say  masses. 
Lady  West  gives  £18  10s.,  "for  to  synge  and 
seye  4400  masses  for  my  lord  Sir  Thomas  West  is 
soule,  and  for  myne,  and  for  alle  cristene  soules," 
and  they  are  to  be  "  done  "  within  "  fourteen  night 
after  her  deces."  There  is  another  bequest  to 
Christ  Church,  where  she  was  to  be  buried,  "  to 
bidde  and  to  rede,  and  synge  for  my  lordes  soule 
forsayd,  and  myne,  and  alle  cristene  soules,  while 
the  world  schal  laste." 

Having  given  all  the  legacies  she  desires,  the  tes- 
tatrix then  disposes  of  the  remainder  of  her  prop- 
erty :  "  An  al  the  residue  of  my  godes,  after  the 
dettys  that  I  owe  ben  quyt,  and  after  my  testament 
is  parfoned,  I  bequethe  to  the  forsayd  Thomas  my 
sone" ;  and  after  all  these  directions  and  legacies, 
the  good  lady  finishes  her  will  by  ordering  the  man- 
ner of  her  own  interment ;  when  she  dies  her  body 
is  to  be  carried  to  the  "  forsayd  priorie  of  Cris- 
cherch,  and  with  right  litel  cost"  buried  at  the 
first  mass,  with  a  taper  of  six  pounds  of  wax  burn- 
ing at  her  head,  and  another  taper  of  six  pounds  of 
wax  burning  at  her  feet. 

The  Avill  of  Shakspeare,  executed  on  the  25th 
March,  1616,  not  quite  a  month  previou'fe  to  his 
death,  forms  a  most  interesting  document  for  the 
scholar,  as  well  as  the  lawyer.  It  is  registered  in 
Doctors'  Commons  verbatim  as  it  was  written,  and 
is  prized  as  a  imique  and  interesting  document 
relating  ta  the  poet.  It  is  ^v^itten  in  the  usual 
clerical  hand   of  the   period,  on  three   sheets  of 


22  CUEIOSITIES    OF   "WILLS. 

paper,  fastened  at  the  top.  Each  sheet  is  signed 
by  the  jDoet,  the  final  signature,  "  By  me,  William 
Shakspeare,"  being  the  most  distinct.  These  three 
autograj^hs,  with  two  appended  to  deeds  relating 
to  his  i^roperty  in  London,  constitute  the  only  un- 
doubted signatures  of  Shakspeare  which  we  at  pres- 
ent possess. 

It  commences  in  the  old  way,  thus : 

"  In  the  name  of  God,  Amen !  I,  "William  Shack- 
speare  of  Stratford  upon  Avon,  in  the  countie  of 
Warr.  gent,  in  perfect  health  and  memorie,  God  be 
praysed !  doe  make  and  ordayne  this  my  last  will 
and  testament  in  manner  and  forme  followeinsr; 
That  ys  to  saye,  First,  I  comend  my  Soule  into  the 
handes  of  God  my  Creator,  hoping  and  assuredlie 
beleeving,  through  thonelie  merites  of  Jesus  Christe 
my  Saviour,  to  be  made  partaker  of  lyfe  everlast- 
ynge,  And  my  bodye  to  the  Earth  whereof  yt  ys 
made." 

It  would  be  tedious  to  give  in  extenso  the  various 
items  of  this  celebrated  will ;  we  shall  only  refer  to 
a  few  such  items  as  are  sufficiently  remarkable.  In 
one  item  he  gives  a  bequest  to  his  sister  Joan :  "I 
gyve  and  bequeath  unto  my  said  sister  Jone  XX 
pounds,  and  all  my  wearing  ApparreU,  to  be  paied 
and  delivered  within  one  yeare  after  my  deceas ; 
and  I  doe  will  and  devise  unto  her  tfie  house  with 
thappurtenaunces  in  Stratford  wherein  she  dwell- 
eth,  for  her  natural  lief,  under  the  yearlie  rent  of 
xij'^,"  or  twelve  pence. 

He  gives  various  specific  and  general  legacies; 
and,  if  we  judge  by  the  number  of  such,  he  must 


INTRODUCTION.  23 

have  had  numerous  friends.  In  another  item  he 
gives  to  the  poor  of  Stratford  "  tenn  poundes  ";  to 
Mr.  Thomas  Combe  his  sword;  to  his  daughter 
Juditli  his  "  broad  silver  gilt  bole."  The  most  re- 
markable item  in  the  will  is  the  following:  '■'■I give 
uMo  my  xoiefmy  secondbest  hedwith  the  furniture?'' 
He  devised  to  his  daughter,  Susanna  Hall,  his  landed 
property  in  Stratford,  limited  to  the  first  or  other 
sons  of  her  body  after  her  life. 

It  is  said  the  object  of  the  poet  in  leaving  the 
bulk  of  his  property  to  Mrs.  Hall  was  evidently  to 
found  a  family,  the  darling  object  of  Shakspeare's 
ambition.  One  clause  interlined  in  the  will  has 
occasioned  a  good  deal  of  marvel  and  censorious 
criticism — the  bequest  to  his  wife,  who  has  been 
represented  as  cut  off  by  him,  not  indeed  with  a 
shilling,  but  with  an  old  bed.  But,  as  she  was  en- 
titled in  law  to  dower  out  of  his  real  estate,  Shak- 
speare  may  not  have  deemed  it  necessary  to  make 
any  further  bequest  to  his  wife  than  that  of  the 
second-best  bed,  as  a  special  mark  of  affection. 
This  is  the  explanation  now  tendered  of  what  must 
otherwise  have  appeared  a  most  extraordinary  pro- 
cedure on  the  i^art  of  the  poet.  It  must  be  admitted, 
however,  that,  making  full  allowance  for  her  pro- 
vision by  right  of  law,  there  still  remains  a  feeling 
of  dissatisfaction  with  the  total  exclusion  of  Anne 
Shakspeare  from  all  parts  of  her  husband's  will, 
with  the  exception  of  an  interlined  clause  of  a 
dozen  words.  It  is  also  a  significant  fact  that,  with 
the  exception  of  the  bed,  no  household  furniture 
is  bequeathed  to  the  Avidow ;  so  that  she  must  have 


24  CFBIOSITIES   OF   WILLS. 

been  left  dependent  on  her  daughters  for  lodging 
and  residence. 

The  Avill  of  Henry  YIII  in  some  of  its  provisions 
is  well  worth  the  attention  of  the  scholar,  as  it  re- 
flects the  state  of  the  distinguished  testator's  re- 
ligious opinions,  which,  contrary  to  general  impres- 
sions, AYcre  not  entirely  in  harmony  with  the  views 
of  the  Reformers  in  England.  This  will  was  the 
subject  of  judicial  examination,  in  the  House  of 
Lords,  in  I860.     (8  H.  L.  Cas.  369.) 

It  appears  that,  by  the  foundation  of  Edward 
ni,  when  he  instituted  the  order  of  the  G-arter,  and 
created  the  Poor  Knights,  a  certain  obligation  had 
been  cast  upon  the  dean  and  canons  of  Windsor  to 
provide  for  the  Poor  Knights,  the  King  having 
promised  the  dean  and  canons  lands  to  enable  them 
to  do  so.  But,  by  an  Act  of  Parliament,  passed  in 
the  22  Edw.  IV,  reciting  that  "the  possessions 
given  to  the  said  dean  and  canons  suffice  not  to  sus- 
tain all  other  charges,  and  also  to  bear  the  charges 
of  the  Poor  Knights,"  it  was  enacted  "that  the 
same  dean  and  canons,  and  their  successors  forever 
more,  be  utterly  quit  and  discharged  from  all  man- 
ner of  exhibition  or  charge  of  or  for  any  of  the 
same  Knights."  Down  to  the  end  of  the  reign  of 
Henry  VIII,  the  Poor  Knights  appear  to  have  been 
fed  only  with  promises,  and  no  permanent  provision 
was  made  for  them.  In  the  3  Hen.  VIII,  the  dean 
and  canons  having,  at  his  request,  granted  to  a 
Poor  Knight,  named  Peter  Narbonne,  an  annuity 
of  twenty  marks  for  his  life,  the  King  wrote  them 
a  letter  of  thanks,  in  whicli  he  acknowledges  that 


INTEODUCTIOK.  25 

they  were  not  bound  to  find  anj'thing  for  the  Poor 
Knights  since  the  22  Edw.  FV;  thanks  them  for 
their  bounty  to  Peter  Narbonne ;  promises  Ihem 
favor  in  their  suits  hereafter  as  a  recompense,  and 
assures  them  "that  they  shall  not  be  burthened 
with  the  maintenance  of  any  other  Poor  Knights  till 
such  time  as  he  should  have  provided  lands  for 
their  exhibition,  which  not  only  shoiild  be  sufficient 
to  discharge  the  dean  and  canons  of  such  Knights, 
but  also  of  the  said  annuity." 

The  promise  was  not  fulfilled ;  and  when  Henry's 
end  approached,  the  breach  of  it  lay  heavily  upon 
his  conscience,  and  henco  the  following  provision  in 
his  will,  which  was  dated  December  30th,  1546, 
about  three  weeks  before  his  death.  One  of  the 
directions  was :  "  That,  as  soon  as  may  be  after  our 
departure  from  this  world,  the  Dean  and  Chapter 
shall  have  manors,  etc.,  to  the  yearly  value  of  £600 
over  all  charges,  made  sure  to  them  and  their  suc- 
cessors, forever,  upon  the  conditions  hereafter  en- 
suing." Among  the  other  provisions  were  the  fol- 
lowing : 

"And  for  the  due  and  full  accomplishment  and 
performance  of  all  other  things  conteined  with  the 
same  in  the  form  of  an  indenture,  signed  with  our 
own  hand,  which  shall  be  passed  by  way  of  cove- 
nant for  that  purpose  between  the  said  Deane  and 
Cannons  and  our  executors,  if  it  pass  not  between 
us  and  the  said  Deane  and  Cannons  in  our  liefe ; 
that  is  to  say,  the  said  Deane  and  Cannons  and 
their  successours  forever  shall  finde  two  prestes  to 
say  masses  at  the  said  aulter  to  be  made  where  we 

V.  nl   W.— 3. 


26  CURIOSITIES   OF   WILLS. 

have  before  appointed  our  tomb  to  be  made  and 
stand ;  and  also  after  our  decease  kei^o  yerely  f our 
solemne  obites  for  us  within  the  said  College  of 
Windesour,  and  at  every  of  the  same  obites  to 
cause  a  solemne  sermon  to  be  made,  and  also  at 
every  of  the  said  obites  to  give  to  poor  people  in 
almes  tenne  poundes. 

"  And  also  to  give  forever  yerely  to  thirtene  poor 
men,  who  shall  be  called  Poor  Knightes,  to  every 
of  them  twelf  pens  every  daye,  and  ones  in  the 
yere  yerely  forever,  a  long  joune  of  white  cloth, 
with  the  garter  upon  the  brest,  embrodered  with  a 
sheld  and  cross  of  Sainte  George  within  the  garter, 
and  a  mantel  of  red  cloth,  and  to  such  one  of  the 
said  thirtene  Poor  Knightes  as  shall  be  appointed 
to  be  hed  and  gouvernour  of  them,  £3  6s.  8d.  yerely 
forever,  over  and  besides  the  said  twelf  pennes  by 
the  daye. 

"  And  also  to  cause,  every  Sonday  in  the  yere, 
foi'ever,  a  sermon  to  be  made  forever  at  Windesour 
aforesaid,  as  in  the  said  indenture  and  covenant 
shall  be  more  fully  and  particularly  expressed, 
willing,  charging,  and  requiring  our  son  Prince  Ed- 
warde,  all  our  executors  and  counsaillors  which 
shall  be  named  hereafter,  and  all  other  our  heirs 
and  successours  which  shall  be  Kinges  of  this 
realme,  as  they  will  answer  before  Almighty  God 
at  the  dredful  day  of  judgment,  that  they  and  every 
of  them  do  see  that  the  said  indenture  and  as- 
surance to  be  made  betwene  us  and  the  said  Deane 
and  Cannons,  or  between  them  and  our  executours, 
and  all  thinges  therein  conteined,  may  be  duly  put 


INTRODirCTIOlT.  27 

into  execution,  and  observed  and  kept  forever, 
perpetually,  according  to  this  our  last  will  and  test- 
ament." 

The  Archbishop  of  *Oanterbury  and  the  Lord 
Chancellor,  and  a  great  many  other  eminent  per- 
sons, and  Councillors  of  the  Privy  Council,  with 
"  our  son  Prince  Edwarde,"  were  appointed  "  ex- 
ecutors," and,  "  as  they  must  and  shall  answer  at 
the  day  of  judgment,"  they  were  required,  "  truly 
and  fully  to  see  this  my  last  will  performed  in  all 
things  with  as  much  speed  and  diligence  as  may  be." 

In  1547,  a  meeting  of  the  executors  and  Privy 
Councillors,  with  the  Lord  Protector  at  their  head, 
was  assembled,  and  a  document  was  drawn  up 
which  recited  the  material  parts  of  the  will  relating 
to  this  matter,  and  directed  that  "  the  Barons  of  the 
Exchequer,  the  King's  Sergeants,  the  Attorney  and 
Solicitor,  should  deliberately  peruse  the  whole  will, 
and  frankly  declare  their  opinions  what  the  execu- 
tors may  lawfully  do,  and  how  and  in  what  form 
the  said  will  may  be  lawfully  executed  and  per- 
formed." This  was  done,  and  a  special  report  was 
afterwards  made,  declaring  that  the  will  might  be 
carried  into  effect,  and  stating  how  that  might  be 
done. 


CHAPTER  I. 

Oeigin  and  History  of  Wjlls. 

Jurists  do  not  quite  agree  as  to  the  full  extent  of 
a  man's  interest  in,  and  control  of,  the  property  he 
acquires.  There  are  different  theories  as  to  the 
real  title  to  property ;  most  all,  however,  agree  that 
occupation,  united  with  labor,  is  the  best  ground  of 
a  title  to  exclusive  ownership  of  property.  But  how 
long  will  this  ownership  or  control  continue  ?  Dur- 
ing lifetime,  or  for  a  longer  period  ?  Some  main- 
tain that,  by  the  law  of  nature,  it  only  lasts  during 
the  life  of  the  owner,  and  after  his  decease  the 
property  again  becomes  merged  with  the  general 
stock  of  the  public — ^it  becomes  puhlici  juris  ;  and 
that  to  permit  one  to  order  and  control  its  disposi- 
tion after  he  has  ceased  to  live,  is  a  privilege  or  a 
concession  of  society,  and  not  any  inherent  natural 
right.  For  a  large  amount  of  property  is  owned  in 
societies  advanced  in  civilization  before  the  right  of 
testamentary  disposition  is  exercised,  which  would 
show  that  this  right  is  not  coeval  with  the  founda- 
tion of  society  or  the  acquisition  of  property,  and 
therefore  nations  are  not  impelled  to  it  by  a  natural 
instinct  and  impulse.  It  is  claimed  that  the  jus 
disponendi  is  a  necessary  incident  of  property — an 
inseparable  quality ;  but  if,  by  this  term,  we  under- 
stand a  right  of  disposal  while  a  man  lives,  we  can 
admit  that  it  belongs  to  ownership ;  but  it  is  quite 

[29] 


30  CURIOSITIES   OF   "WILLS. 

a  different  thing  when  a  man  ceases  to  live ;  for 
then,  naturally,  he  ceases  to  have  dominion ;  and  if 
he  has  a  natural  right  to  dispose  of  his  goods  for  a 
short  time  after  death,  why  not  for  millions  of 
years  ?  * 

It  is  not  a  natural  inherent  right  of  the  individ- 
ual to  dispose  of  his  property  after  his  decease  ;  it 
is  no  more  or  less  than  a  right  given  by  positive 
law — a  right  which  is  founded  on  convenience  and 
concession. 

For  a  very  obvious  reason,  we  do  not  find  this 
right  in  the  early  constitution  of  society,  either 
given  or  exercised.  Society,  in  early  times,  was 
founded  on  the  family  as  the  initial  unit  or  group, 
which  was  only  recognized  by  the  State  as  entitled 
to  maintenance.  Naturally,  by  right  of  this  princi- 
ple in  early  society,  the  property  acquired  by  an  in- 
dividual went  into  the  general  stock  of  the  family, 
as  a  necessary  appanage^  and  was  in  the  name  of 
the  head  of  that  family,  and  at  his  decease,  by  a 
principle  of  early  law,  devolved  in  due  course  uj^on 
the  successor,  or  the  hoeres  of  the  Roman  law,  who 
took  it  with  all  the  obligations  of  the  deceased. 
Society  had  not  yet  so  advanced  as  to  make  the  indi- 
vidual an  object  of  its  care  and  government,  and 
recognize  him  as  a  distinct  unit  apart  from  the  fam- 
ily; and  succession — "universal  succession,"  as  it 
was  called — to  the  property  in  the  family,  was  the 
usual  disposition  of  property.  It  took  a  long  while 
before  society  permitted  the  individual  to  dispose 
of  his  property  out  of  his  family^  because  this  was 

♦  BUck.  n,  21. 


OEIGCT  AND   HISTORY.  31 

SO  abnormal  and  unnatural  as  to  be  only  dictated 
by  caprice,  passion,  or  prejudice,  insomuch  that 
whenever  attempted  among  the  Romans,  the  will 
was  set  aside  as  inofficious,  and  it  was  not  permit- 
ted at  all  in  the  early  English  law ;  and  even  now 
is  a  presumed  ground  of  imbecility  or  insanity  in  a 
testator. 

The  will,  as  we  understand  it,  is  unquestionably 
of  Roman  origin — it  is  purely  a  creature  of  that 
law,  the  corpus  juris,  "  the  public  reason  of  the 
Romans."  The  laws  of  Solon  only  permitted  wills 
when  the  testator  had  no  children.*  Among  the 
Hindoos,  the  right  of  adoption  as  a  succession  to 
property  effected  the  same  purpose  as  a  will,!  while 
among  the  Teutonic  nations  wills  were  unknown, 
and  the  children  inherited. t 

At  first,  among  the  Romans,  a  Avill  was  neither 
secret,  revocable,  nor  of  effect,  until  after  death — 
characteristics  which  we  necessarily  associate  with 
a  will  in  modern  times.  A  will  then  was  more  like 
a  conveyance  in  a  man's  lifetime — a  sale  of  the 
family  rights,  property,  and  obligations,  in  the  pres- 
ence of  witnesses,  to  a  person  known  as  the  Emj>- 
tor  Familice,  who  assumed  the  place  of  the  testator 
as  head  of  the  family.  He  might  be  compared  to 
an  assignee  under  our  law,  with  this  difference,  that 
the  latter  is  only  liable  as  far  as  he  has  assets. 
Wills  were  usually  witnessed  by  seven  witnesses, 
who  sealed  outside  upon  a  thread,  and  after  some 
time,  deposited  in  the  archives  during  the  life  of 

*  ThirlwaU  :  Hist,  of  Greece,  187. 

t  Dwight's  Introd.  to  jVIaine's  Ancient  Law 

%  Tac.  Germ.  2. 


32  CUKIOSITIES   OF  WILLS. 

the  testator,  and  opened  in  the  presence  of  the 
praetor  or  other  oificer,  after  decease,  and  any  per- 
son might  have  a  copy,  being  matter  of  record.* 

The  Roman  law  did  not  permit  the  entire  dispo- 
sition of  property  by  will,  if  a  man  had  a  family. 
By  a  law  of  Justinian,  one-fourth,  at  least,  was  re- 
quired for  the  children,  and  when  there  were  four 
children,  they  could  claim  one-third,  which  became 
a  general  law  throughout  Europe.f 

The  Roman  influence,  connection,  and  dominion 
in  Great  Britain  necessarily  introduced  Roman 
laws  and  usages.  It  was  a  connection  lasting  fully 
three  hundred  years,  during  which  time  the  country 
was  visited  by  Roman  jurists,  and  the  people  be- 
came familiarized  with  the  administration  of  the 
civil  law,  both  through  the  civil  coui'ts  and  the 
churches.  Accordingly,  while  wills  were  not  in 
use  among  kindred  Teutonic  peoj^le  in  the  north  of 
Europe,  they  were  well  known  and  general  in  the 
Saxon  period  in  England,  where  an  unlimited  and 
absolute  right  of  devise  was  given.  In  the  laws  of 
King  Canute,  provision  is  made  for  the  disposition 
of  property  in  cases  of  intestacy,  which  makes  it 
evident  that  testamentary  dispositions  were  recog- 
nized ;  X  and  Canute  himself  left  a  will.  §  There 
are  notices  of  some  twenty-five  Anglo-Saxon  wills 
extant.  Nearly  all  of  the  testators  were  people  of 
prominence  and  distinction,  and  these  wills  are 
preserved  in  monastic  houses  to  which  they  devised 
property.     King  Alfred's   will,  from  its   antiquity 

*  Dig.  lib.  28,  tit.  2.  t  Selden  :  Orig.  Prob.  Juris.,  15. 

t  Spence :  Eq.  Juris.  1, 188.         §  Milton,  p.  318. 


OBIGHT  AKD   HISTORY.  33 

and  its  formal  character,  is  one  of  the  most  inter- 
esting ancient  documents  existing.  (He  died  A. 
D.  900.)  It  opens  thus:  "I,  Alfred,  King  by 
God's  grace,  and  mth  Ethered's  the  Archbishop's 
counsel,  and  all  the  West  Saxon  Wights,  witness, 
have  considered  about  my  soul's  thrift,  and  about 
the  inheritance  that  to  me,  God  and  mine  Ances- 
tors did  give,  and  about  the  inheritance  that  Ethulf, 
King,  my  father  to  us,  three  brothers,  bequeathed, 
Ethelbold,  Etherad  and  me."  He  provides  for 
masses  thus :  "  And  so  divide  for  me  and  my  fath- 
er, and  for  the  friends  that  be  interceded  for,  and  I 
intercede  for,  two  hundred  of  pounds,  fifty  to  the 
mass  priests  over  all  my  kingdom,  fifty  to  God's 
poor  ministers,  fifty  to  the  distressed  poor,  fifty  to 
the  church  that  I  at  shall  rest;  and  know  not  cer- 
tainly whether  the  money  so  much  is,  nor  I  know 
not  but  of  it  more  may  be,  but  so  I  ween." 

It  appears  that  King  Alfred's  will  was  prepared 
by  the  Archbishop's  counsel,  and  published  in  the 
presence  of  the  West  Saxon  Wights,  or  Wise  Men. 
This  gives  us  a  glimpse  at  the  interference  of  the 
clergy  in  such  important  affairs,  and  leads  us  on  a 
most  interesting  and  important  inquiry  as  to  the 
connection  of  wills  with  ecclesiastical  courts. 

The  clergy  of  that  time  possessed  a  monopoly  of 
the  learning  of  the  day,  and  especially  of  the  learn- 
ing of  the  civil  law,  having  made  it  a  matter  of 
study.  Reasonably  they  would  be  consulted  on 
subjects  on  which  the  civil  or  Roman  law  had 
such  a  bearing ;  and  as  a  matter  of  fact,  they  soon 
became  presiding  judges  with  the  civil  magistrate 


84  CUKIOSITIES   OF  WILLS. 

in  cases  of  probate  of  wills.  In  the  early  Saxon 
period,  the  bishop  sat  with  the  earl  in  the  county 
court  in  the  administration  of  testamentary  mat- 
ters ;  and  this  was  the  case  up  to  the  time  of  the 
Normans.  But  the  clergy  had  occasion  to  inter- 
fere on  other  grounds,  at  a  very  early  period.  At 
a  very  early  day,  they  sought  jurisdiction  in  j)ro- 
bate  matters.  The  practice  was  probably  favored 
by  the  sanction  given  by  the  civil  law  to  the  inter- 
vention of  the  bishop  to  compel  the  execution  of  a 
will  where  there  were  legacies  in  pios  usus — to 
pious  uses.*  When  any  legacy  was  disposed  of  to 
pious  uses,  for  the  use  of  the  church,  for  monaster- 
ies, or  for  the  poor,  the  bishops  were  to  sue  for  the 
same,  and  see  to  the  administration  thereof.!  But 
Justinian  would  not  allow  further  than  this,  and  he 
prohibited  the  bishops  interfering  generally  in  the 
probate  of  wills.^  Upon  which  a  writer  remarks : 
"Here  we  see  the  clergy  in  those  days  had  set 
their  foot  upon  the  business,  and  I  suppose  since 
that  time  they  never  pulled  it  wholly  out  again." 

The  popes,  as  their  power  increased,  endeavored 
to  obtain  the  jurisdiction  over  testaments.  Pope 
Innocent  the  Fourth  claimed  for  the  bishop  the 
power  to  dispense  property  left  to  a  charity,  if 
there  be  no  executor  appointed  by  the  will,  and  if 
there  be  an  executor,  and  he  does  not  discharge  the 
duty  faithfully,  the  bishop  may  assume  administra- 
tion.§ 

As  a  matter  of  history,  in  European  countries, 

*  Selden,  pp.  3,  4.  J  Idem,  leg.  41. 

t  Code  :  lib.  I,  tit.  3,  leg.  42.  §  Decret.  lib.  3,  tit.  26,  0. 19. 


OEIOrNT   AND   niSTORY.  35 

except  England,  tlie  church  did  not  pretend  that 
wills  were  of  ecclesiastical  cognizance  sua  natura, 
but  only  such  wills  as  were  made  for  pious  uses.* 
So  that  the  origin  of  the  jurisdiction  of  ecclesias- 
tical courts  touching  testamentary  matters  is  by 
the  custom  of  England,  and  not  by  ecclesiastical 
law.  Blackstone  says :  "  The  si^iritual  jurisdiction 
of  testamentary  causes  is  a  peculiar  constitution  of 
this  island ;  for  in  almost  all  other  (even  in  23opish) 
countries  all  matters  testamentary  are  under  the 
jurisdiction  of  the  civil  magistrate."  f 

We  have  seen  that  during  the  Saxon  period  the 
bishop  presided  with  the  earl  in  the  administration 
of  testamentary  matters ;  but  in  the  eighteenth 
year  of  William  the  Conqueror,  a  separate  court 
was  organized  for  the  bishop,  who  no  longer  sat  with 
the  civil  authorities.  This  was  the  beginning  of 
the  ecclesiastical  jurisdiction ;  though  at  first  pow- 
er was  granted  only  to  adjudicate  on  such  matters 
as  were  for  the  good  of  the  soul,  an  expression 
which  the  bishops  subsequently  made  very  elastic 
and  comprehensive.  The  clergy  did  not  acquire 
the  exclusive  jurisdiction  till  the  reign  of  Henry  I, 
who  by  charter  first  established  this  jurisdiction. t 
In  the  time  of  Richard  I,  when  he  was  in  confine- 
ment, the  clergy  were  more  fully  established  in  this 
right,  for  they  obtained  from  him  a  confirmation  of 
the  ecclesiastical  immunities.  § 

The  proof  of  wills  was  thus  well  settled  and  es- 
tablished, for  it  is  spoken  of  as  an  ordinary  and  un- 

*  Harriot  v.  Harriot,  1  Strange  667.  X  Matt.  Paris,  fo.  56. 

\  Black.  Ill,  95.  §  Idem,  fo.  Ifll. 


36  cuRiosiTrEs  of  wills. 

disputed  usage,  and  through  all  the  animated  dis- 
putes in  the  reign  of  Henry  II,  as  to  the  civil  and 
ecclesiastical  jurisdiction,  it  is  observable  that  noth- 
ing is  advanced  against  the  authority  of  the  spirit- 
ual courts  in  testamentary  causes.  In  the  reign  of 
Richard  II  the  county  coui'ts  were  prohibited  to  in- 
fere  with  the  probate  of  wills.* 

By  the  early  common  law  of  England,  if  a  man 
had  a  wife  and  children,  he  had  only  a  testamentary 
disposition  of  one-third  of  his  property ;  the  remain- 
der, the  shares  of  the  widow  and  children,  were 
called  rationahiles  partes^  which  must  be  intact. 
The  personal  attendance  of  the  clergy  on  the 
dying  would  ordinarily  lead  to  the  disposition  of 
the  third  which  a  person  was  privileged  to  bequeath 
by  testament ;  and,  from  ancient  wills,  it  is  very 
evident  this  power  was  liberally  and  generally  exer- 
cised in  favor  of  religious  uses,  such  as  were  deemed 
for  the  soul's  health  of  the  testator.  Whenever, 
by  accident  or  extreme  feebleness,  the  exercise  of 
this  right  was  prevented,  the  third  thus  left  at  the 
disposal  of  a  person  was  of  right  claimed  by  the 
clergy,  as  the  "  dead  man's  part,"  to  be  appropriated 
for  his  benefit,  pro  animce  salute.  This  would  lead 
to  the  intervention  of  the  spiritual  courts  in  the 
distribution  of  an  intestate's  estate,  especially  as 
they  had  full  power  over  the  probate.  So  it  be- 
came the  invariable  custom  to  take  the  third  of  an 
intestate's  goods  for  pious  uses,  which  were,  to 
assist  in  paying  for  masses  for  the  benefit  of  the 

*1  Stxange  C67. 


ORIGIN   AXD    HISTORY.  87 

"  defunct's  soul,"  to  assist  the  poor  and  infirm,  to 
pay  for  church  liglits,  religious  services,  and  anni- 
versaries. If  a  man  died  without  wife  or  children, 
the  Ordinary,  as  the  bishop  was  termed,  had  the 
administration  of  the  whole  of  an  intestate's  prop- 
erty, subject  to  the  payment  of  the  debts  of  the 
deceased.  It  is  easy  to  see  what  immense  power 
and  revenue  accrued  to  the  church  in  consequence 
of  the  establishment  of  these  privileges ;  and  the 
influence  gained  thereby,  and  the  flagrant  abuses 
resulting  from  this  prerogative,  caused  just  alarm 
to  the  civil  power,  and  led  to  a  struggle  to  curtail 
such  powers  in  the  reign  of  Edward  III,*  when  a 
law  was  passed  providing  that  the  Ordinary  should 
grant  the  administration  to  the  next  of  kin.  The 
Statute  of  Distribution,  in  the  reign  of  Charles  II, 
destroyed  the  old  common-law  right  to  the  pars  ra- 
tionabilis,  and  made  the  estate  distributable  among 
the  widow  and  next  of  kin,  leaving  still,  however, 
in  the  hands  of  the  administrator,  for  his  own  use, 
the  third  formerly  retained  by  the  church;  and 
finally,  by  statute,  in  the  first  year  of  James  II,  it 
was  provided  that  this  third  should  also  be  dis- 
tributed. So,  after  a  struggle  of  many  years,  the 
administration  of  the  goods  of  an  intestate  was 
taken  out  of  the  hands  of  the  spiritual  courts,  and 
rightfully  given  to  the  family  of  the  deceased.  The 
long,  slow  process  is  an  interesting  phase  of  history 
for  the  general  reader,  as  it  is  for  the  lawyer,  who 
finds  it  necessary  to  follow  it,  because  the  rules  and 

•Black.II,  ch.  32. 
C.  OF  W.— 4. 


38  CUEIOSITIES   OF   WILLS. 

decisions  of  the  ecclesiastical  courts  as  to  the  pro- 
bate of  wills  and  the  administration  of  personal 
property  have  become  incorporated  into  the  body 
of  our  law,  and  form  a  part  of  it.* 

Up  to  the  thirty-second  year  of  Henry  VIII, 
there  was  no  power  to  make  a  will  of  real  estate. 
In  his  reign  the  Statute  of  Wills  was  passed,  which 
first  gave  this  power,  and  after  that  time  a  person 
had  the  right  to  make  wills  of  real  as  well  as  per- 
sonal property ;  but  the  ecclesiastical  courts  had 
only  cognizance  of  the  wills  of  personal  property  ; 
the  common-law  courts  had  the  jurisdiction  of  wills 
relating  to  real  estate. 

The  next  statute  that  affected  wills  was  the 
Statute  of  Frauds^  in  the  twenty-ninth  year  of 
Charles  II,  which  required  wills  affecting  real  es- 
tate to  be  in  writing,  signed  by  the  testator,  and 
attested  in  the  presence  of  three  or  four  credible 
witnesses.  This  statute  had  an  immense  influence 
on  our  jurisprudence,  and  is  substantially  adopted 
in  all  our  States,  with  slight  variations.!  In  that 
statute  certain  formalities  were  insisted  upon,  but 
only  in  regard  to  a  will  of  real  estate ;  a  will  of  per- 
sonal proj^erty  was  not  required  to  be  executed  in 
the  same  manner  and  with  the  like  formalities.  % 
Before  the  Statute  of  Frauds,  according  to  32  Henry 
VIII,  it  was  only  necessary  for  the  will  to  be  in 

*Hale,  Hist,  of  Com.  Law,  28. 

t  Greenleaf,  Evid.,  vol.  I,  §  26. 

X  Lord  Hardwicke,  in  Ross  v.  Ewer,  3  Atk.  156,  said  :  "  There  is  nettl- 
ing that  requires  so  little  solemnity  as  the  making  of  a  will  of  personal 
estate.  There  is  scarcely  any  paper  writing  that  will  not  be  admitted 
as  such. 


OEIGry   AKD    HISTORY.  39 

writing;  and  accordingly,  where  a  man  beyond  the 
sea  wrote  a  letter,  in  which  he  declared  his  will  to 
be  that  his  land  should  go  in  a  certain  way,  it  was 
adjudged  a  good  will  *  And  a  will  written  with- 
out the  appointment  of  the  testator,  if  read  to  him 
and  approved  by  him,  was  held  good,  signing  and 
sealing  not  being  necessary .f 

Now,  by  statute  I  Vict.,  ch.  26,  in  England, 
there  are  required  the  same  formalities  in  a  will  of 
personal  estate  as  by  the  Statute  of  Frauds  are 
required  in  a  will  of  real  estate,  and  the  same  is 
now  the  case  in  nearly  all  our  States ;  and,  by  the 
same  statute,  a  person  has  a  full  testamentary  dis- 
position of  all  real  estate,  as  well  as  personal,  to 
which  he  is  entitled,  either  in  law  or  in  equity,  at 
the  time  of  his  death. 

Our  American  States  generally,  after  the  Revo- 
lution, adopted  the  English  common  law,  as  it  was 
at  certain  periods — some  taking  one  date,  and  others 
a  different  one  ;  but  in  all  substantially  the  common 
law  was  taken  as  the  foundation  of  our  municipal 
law,  with  the  exception  of  Louisiana.  Hence  the 
law  relating  to  the  execution  and  probate  of  wills, 
as  administered  in  the  ecclesiastical  courts,  was 
engrafted  here,  subject  to  certain  statutory  modifi- 
cations suitable  to  our  polity  and  circumstances. 
But  we,  having  no  recognition  of  an  established 
religion,  have  given  this  jurisdiction  to  special  civil 
courts,  denominated  Probate  Courts  in  some  States, 
as  in  California ;  the  Orphan's  Court,  as  in  New 

•Moore,  177.  t  Cro.  Eliz.  100. 


40  CUKIOSITIES    OF   WILLS. 

Jersey;  the  Surrogate's  Court,  as  in  New  York. 
The  name  Surrogate  again  brings  to  our  mind  a 
reminiscence  of  the  former  ecclesiastical  jurisdic- 
tion ;  it  was  the  name  given  to  the  bishop's  deputy. 
However,  in  all,  no  matter  by  what  name  known, 
the  precedents,  the  decisions,  and  rules,  as  estab- 
lished in  the  ecclesiastical  courts  in  England,  in 
regard  to  testamentary  matters,  have  authority  and 
force ;  and  it  is  for  this  reason  the  history  and 
adjudication  of  these  courts  are  so  necessary  to  the 
lawyer  of  the  present  day.* 

*It  should  be  observed  that  the  ecclesiastical  jurisdiction  over  vrills 
iB  now  abolished  in  England  ;  and,  since  1857,  the  jurisdiction  is  given 
to  the  Coiurt  of  Probate  and  Divorce. 


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ratjqSuT^^o^  P'lOT  Vs^.%  uqx{%  st?Ai  (jj  •uoi^'BUJOqns 
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9snqt3  SS0.1S  t!  S13AV  5j  -guo  t3  qons  pimoai3  spii3nS9ji3s 
g^^Tjnbgptj  SuioTj^d  in  ^ou^s  iCjoA  gq  o;^  sgati^T;];siS9| 
^qSnt;!}  scq  xiosjgd  Sui^Cp  a^qggj  v  punojjns  oqAv  gsoq!^ 
Suorae  iCoBJidsuoo  puB  uoistqpo  jo  jgSucp  gqj^ 

n^^$im9UfX9  in  gp-BTii  ugqAi  pg^ijjg 
-{0%  gq  o;^  jCjuo  si  |jm  gAi^^Bdnoanu  m  %vt{%  'gau^ioop 
p9Sp9|AVOU5[0i3  oq*^  giuoogq  st3q  ^t  ^tsx^X  os  'Xi3p  stq^  o:; 
gmT!^  %xii[%  tao.ij  sj9^t.iav-a\13]^  qsqSug;  gq^  jo  gScnSaB^ 
uuojmn  gq^.  uggq  stjq  siqj^  „  :  sAvs  (^ug]g;  JojpouuqQ 
^'iCjgAoogj  JO  gdoq  \[^   '^S'Bd  puB  '>[T39Ai  '>[ois  Ajoa 

•STiiAV  AO  saiiisoiano  1^^ 


'SIS  •snuof  05  'nojaxzsH  '^  oomia  * 

-uod.iuo  osnoq  v  o%  paoi'^uaaddu  suav  ajj  'Xjauuj  aqi 
JO  ^saSunoX  aq';  8t?av  aq  pu'B  'sia:^STS  putj  'sJtaq:^ojq 
■s:^uajTjd  SaTAT|  naq^  pt;q  ajj  '0611  -^^^-^  ^^^  ^^  5[0Bq 
sn  saTJiBO  qoiqAi  put?  'q-^tjap  sui  ajojaq  sivdA  A'^jxvi} 
^^noq'B  uoT^tionpa  poqos  v  paAiaoaj  put;  'putJiajj  m 
*nT|qn(j  jo  jC^nnoo  aqc^  m  luoq  stjav  ajj  'notssajojd 
jCq  oi[oq^t;Q  snoTSi^a.:  ■«  puB  q^.iiq  ^Cq  ucraqsiaj  ub 
SBAi  sauo£  nit}r[|ij^  „  :  ^ua]g;  Aq  uaAiS  stj  ajaAV  s:^ot;j 
aqX  'aouanpui  anpun  jo  saouapiAa  ^ucui  os  dXQM. 
oidX{%  stJ  put;  'X'jiuiaj^xa  (^sb^  siq  ui  %i  apBui  10%'^% 
-^d%  QX[%  .Ttjaddt;  ^on  pip  ^t  asn^oaq  'pT[T;Ain  paj^pap 
Xj^Bug  stJAi  %j^  •sassau'jTAv  jtioj  ^{q  passau^^iAi  sxsm. 
j|iAV  aqj;,  a'^m.'i^  J^  aoi'^ou  Qy[v%  0%  vaoox  aq'^  m  nt? 
nojC  qsm  j  •jf'^jadojd  Axa  :jTjaquT  n^^s  uosjad  laq'^o 
^K  *^I  P  -^q^^JOAi  SI  aqg  •ssau5[ois  Am.  SniJtip  jaq 
uioaj  paAiaoai  aA^q  j  xioi%ud%iis  pni3[  puB  '^uani^Baj'j 
pooS  aq-^  JO  aouanbasuoo  ui  siq-^  op  j  i  no:;apB2 
iCjcpf  o:^  JO  passassod  vav  j  iC:^jadojd  aq:^  ji^s  aA^aj  j 
V3T['i  'ajojaq  piBS  ^Jp^:^B^daJ  aABq  j  sb  'jCbs  aiou  j  „ 
:sAi.o|pj  SB  SBAi  puB  'oS8I  'IH^^V  ^^Xl  ^^^  ^^  sauop 
mBTTTT  M  iJ  -^q  apBui  sbai  ||ia\.  aqj,  -uoissnosip 
qSnoJoq^  b  paAiaoaj  S|{iAi  aAi^Bdnoimn  jo  ^ooCqns 
aq:^  aaaqAi  'uoiuido  siq  ui  ^sunf  :juaninia  ^Bq:^  iCq 
uaAiS  jCjBurains  a^qBainipB  aq:^  uBq^  ^i  jo  (^u^I^a:^B:^s 
ja:^iaq  ou  aAiS  ubo  a^  'Al^J  ^Bt{Av.araos  pa:^B^s 
aq  o:;  8in^  q^JOAV  aq  him.  puB  'aao  snouno  XiaA 
■B  SBAi  pasn  9jaA\.  spjoAi  asaq:^  qoiqAi  ui  asBO  aqx 

^  ^j'asBO  ^UB  UI  ^\[CA.  aq  ppoqs 
\[iM.  aAi^^Bdtiounu  ou  %nx['].  avb^  b  Xbp  auo  aas  o^  adoq 
ppoqs   J  „  :  paAjasqo  ^ua^;  JO^jaouBqj^  'siq^  nodjQ 


CHAPTER  n. 

Form  axd  Requisites  of  "Wills. 

A  will,  from  its  nature,  is  the  declaration  of  a 
man's  mind  as  to  the  proper  disposition  of  his  prop- 
erty after  death.  This  declaration,  as  any  other 
fact,  is  established  by  evidence,  oral  or  written.  It 
is  not  the  essence  of  a  will  that  it  shall  be  in  writ- 
ing ;  the  essence  is  the  declared  purpose  or  intention, 
and  this  is  established,  as  any  other  fact  in  law,  by 
witnesses,  or  by  the  written  declaration  of  the  tes- 
tator. In  Bacon's  Abridgement,  a  will,  therefore, 
is  defined  to  be,  "A  declaration  of  the  mind,  either 
by  word  or  writing,  in  disposing  of  an  estate ;  and 
to  take  place  after  the  death  of  the  testator."*  A 
distinction  was  formerly  made  between  a  will  and  a 
testament ;  when  lands  or  tenements  were  devised 
in  writing,  it  was  by  will,  and  when  goods  and 
chattels  were  disposed  of,  it  was  by  testament ;  but 
this  distinction  is  now  lost  sight  of,  and  the  words 
are  used  indiscriminately,  and  we  speak  of  the  post- 
humous disposition  of  an  estate,  of  whatever  kind, 
as  by  last  will  and  testament. 

Since  peculiar  perils  and  obstacles  beset  a  man  in 
his  last  hours ;  as  much  uncertainty  and  contention 
have  arisen  as  to  his  precise  purpose  and  declara- 
tion ;  and  as  there  is  a  strong  and  very  unusual 

•WiUs— A.  [41  ] 


42  CURIOSITIES   OF   WILLS. 

temptation  and  opportunity  given  to  designing  ^nd 
evil  persons  who  may  surround  him,  to  falsify  his 
intention  to  their  advantage,  it  has  seemed  politic 
and  wise  to  legislatures  to  prescribe  a  mode  by 
Avhich  wills  shall  be  evidenced  and  proved,  to  guard 
against  fraud,  imposition,  and  uncertainty.  Hence, 
in  the  statutory  enactments  of  every  State,  there 
are  precise  and  strict  rules  laid  down  on  the  subject ; 
and  as  writing  is  the  most  reliable  and  permanent 
mode  of  conveying  the  proof  of  a  person's  inten- 
tion ;  and  as  it  is  now  an  acquirement  possessed  by 
almost  every  one,  it  is  now  the  mode  insisted  on 
for  embodying  the  declaration  of  a  man's  last  will 
and  testament,  with  rare  exceptions  as  to  verbal 
wills.  We  may,  therefore,  speak  of  wills  in  two 
great  classes,  viz..  Verbal  and  Written. 

Section  1. — ISTxtncupative  Wills. 

A  nuncupative  will  is  a  verbal  declaration  of  a 
person's  intention  as  to  the  manner  of  disposition 
of  his  property  after  death.  Formerly,  at  an  early 
period,  this  must  have  been  the  usual  kind  of  will 
in  general  use,  when  writing  was  a  rare  acquirement. 
Before  the  Statute  of  Frauds,  it  was  of  as  great 
force  and  efficacy  (excejit  for  lands,  tenements,  and 
hereditaments)  as  a  written  testament.*  But  as 
wills  of  this  kind  were  found  liable  to  great  imposi- 
tions and  frauds,  and  occasioned  many  perjuries, 
that  statute  placed  them  under  several  restrictions, 

*  Swinb.  Pt.  I,  Sec.  12, 


FORM   AND   REQUISITES.  43 

except  "when  made  by  "  any  soldier  in  actual  mili- 
tary service,  or  any  mariner  or  seaman  being  at 
sea."* 

The  imminent  dangers,  the  diseases  and  sudden 
death  which  constantly  beset  soldiers  and  sailors ; 
the  utter  inability  oftentimes  to  find  the  time  or  the 
means  to  make  a  deliberate  or  written  testamentary 
disposition  of  their  effects,  seem  at  aU  times  to 
have  made  them  a  proper  exception  to  the  operation 
of  a  rule  which  the  wisdom  of  later  times  has  found 
it  expedient,  if  not  absolutely  obligatory,  to  apply 
to  all  others.  Hence,  almost  all  governments  grant 
this  immunity  to  this  class  of  persons.  It  was  a 
peculiar  privilege  of  the  Roman  soldiers,  who  were 
exempt  when  on  a  military  expedition  from  com- 
plying with  the  strict  testamentary  law ;  the  privi- 
lege, however,  was  only  well  established  under  the 
Empire,  and  after  a  time  it  was  extended  to  the 
naval  service,  and  officers,  rowers,  and  sailors  were, 
in  this  respect,  esteemed  as  soldiers.f 

Another  class  of  persons  formerly  permitted  to 
make  this  kind  of  will  were  those  who  were  at  the 
point  of  death,  or  as  it  was  termed,  in  extremis. 
And  in  many  States  this  privilege  is  still  granted 
this  class. 

For  a  long  period,  as  far  back  as  a  little  before 
the  time  of  Henry  VIH,  this  kind  of  will  was  con- 
fined to  this  class  of  persons.^  A  writer  of  the 
time  of  Henry  YIH  says :  "  This  kind  of  testa- 
ment is  made  commonly  when  the  testator  is  now 

•  29  Car.  H,  Ch.  3,  Sec.  23.  t  Dig.  lib.  37,  tit.  12,  Sec.  1. 

tEedfleld  on  WiUs,  I,  p.  181. 


44  CITBIOSITIES    OF   WILLS. 

very  sick,  weak,  and  past  all  hope  of  recovery." 
Chancellor  Kent  says :  "  This  has  been  the  uniform 
language  of  the  English  law-writers  from  that  time 
to  this  day,  so  that  it  has  become  the  acknowledged 
doctrine,  that  a  nuncupative  will  is  only  to  be  tol- 
erated when  made  in  extremis.^^* 

The  danger  of  collusion  and  conspiracy  among 
those  who  surround  a  feeble  dying  person  has  taught 
legislatures  to  be  very  strict  in  placing  adequate 
safeguards  around  such  a  one.  It  was  a  gross  abuse 
of  such  an  opportunity,  in  a  remarkable  case  in  the 
twenty-eighth  year  of  Charles  II,  that  led,  it  is  sui>- 
posed,  to  the  enactment  of  the  Statute  of  Frauds 
in  the  next  year. 

The  case  was  this  rf  Mr.  Cole,  at  a  very  advanced 
age,  married  a  young  woman,  who  during  her  life- 
time did  not  conduct  herself  so  as  to  make  the  old 
man's  life  a  placid  or  a  happy  one.  After  his  death 
she  set  up  a  nuncuiDative  will,  said  to  have  been 
made  in  extremis,  by  which  the  whole  estate  was 
given  to  her,  in  opposition  to  a  will  made  three 
years  before  the  testator's  death,  giving  £3,000  to 
charitable  uses.  The  nimcupative  will  was  proved 
by  nine  witnesses;  and  after  examination  in  the 
course  of  a  trial,  it  appeared  most  of  the  witnesses 
were  perjured,  and  Mrs.  Cole  was  found  guilty  of 
subornation.  It  was  then  that  Lord  Nottingham 
said :  "  I  hope  to  see  one  day  a  law  that  no  written 
will  should  be  revoked  but  by  writing."  He  was 
gratified  in  seeing  such  a  law  the  succeeding  year. 

•  20  Johns.  511.  t  Cole  v.  Mordaunt,  4  Ves.  196. 


HDAtS  SI  noipipsimf  aqj  'iS8I  aonia  'pa«  ;  pnuiSng;  ni  paqsTjoqo  M.oa  sj 
Biiuv  »Ao  uoj^joipsimC  x^oi^SBtsapoa  eq^  %vn%  poAjasqo  aq  ptnoqs  ;i, 

^•^^p  ^U9sajd  QX{%  JO  jaX^^i 
QX{%  o%  jCaBSS908U  OS  9J'B  s:)JTioo  osaq:;  jo  uoT:^T?oipnfpB 
puu  XJo:^g^q  oq^  uoscaj  siq'j  joj  si  'ii  puB  iaoaoj 
puB  ^^uoq^inB  9AT?i[  's.ia'^'^Bui  X.ic^uauiB'jsa^  o^  patjSa-i 
ui  'puB^Sng;  ui  s^juoo  |BOi;suTS9poa  9q;  ux  p9qsi^ 
-qB^S9  sc  'S9pij[  parj  'saotspgp  9q^  's;u9p909Jd  aq^ 
'ajii0U3[  gnitju  %tsx{M.  Ac{  j9W^ui  ou  '[{tj  ui  'aaAa^ojj 
•.^;nd9p  g^doqsiq  9q:^  o;  u9At3  9raT;n  gq:^  sb41  !;t  f  uot!^ 
-oipsunC  p30T:iSTiiS9po9  aanijoj  gq^  jo  goagosmitagj 
■c  pmta  ano  o;  sSuijq  uibSb  g^jcSo-utig  araeu  gqj, 
•jjaoj;^  A\.9^  UI  SB  '^.moQ  s^g^'eSoaatig  aq;  JiCgsagj* 

•siTDLAv  Ro  saixisoiano  o"^ 


IBtisnun  j(j9A  puB  Suoj!^s  b  si  ojaq:;  sb  pn^  i  aop 
-uj'Bpop  puTj  asodjtid  asioead  siq  o:;  sb  uosub  aABq 
uoT^ua^^uoo  puu  X^uTtj^aaoun  qonm  sg  '.  sjnoq  ^sbj  siq 
UT  u'Biu  B  ^9saq  s8p'B:;sqo  -gnv  sjiaed  aBipood  aotng 

•i^uara'B^^sa^  pun  ^^liii  (^sb^  ^Cq  su 
'pui5[  jaAa^j'gqAi  jo  'o'jB^sa  ub  jo  uopisodsip  snouinq 
-isod  aqi  jo  5[B9ds  9Ai.  puB  'jC|9:^t;mrai.iosTpui  pgsn  qjts 
spaoAi  9q:^  put:  'jo  :^q§is  ^so^  A^ou  si  uoi^omi^STp  siq'^ 
%i\q  f  ;^U9rai;:jS9:^  Xq  stjai  :;t  'jo  p9Sodsip  9a9Ai  sp^^^cqo 
puB  spooS  u9qM.  put?  '{^lAV  jCq  sbai  %i  'Sni^^uAi  ui 
pgsTAop  9.1 9A\.  s:^n9uiou9:;  jo  spuBj  ugqAi  '  (}U9inT;:}S9:> 
■B  puB  n{^  'B  u99Av:j9q  apBta  Xi.i9ni.ioj  sbav.  uoi^onT:jSTp 
Y     ^u'-^^^^^^s^^  Q^*  }^  q:^B^p  aq!^  Ja^jB  90B^d  95[B'J  o^ 

pUB    i  Q'^TS^SQ  W3  JO  Suisodsip  Ul  'Sai^TJAl  JO  pjoM.  jCq 

J9q:^i9  'punn  9n%  jo  uoi^BJBpap  y,,  'aq  04  p9ug:9p  si 

'9J0J9J9q'J   'l^Ai.  B  '!^U9ra9SpijqY  SjUOOBJJ  uj      -jo^b^^ 

-S9;^  9q^  JO  uoi:jBJBp9p  u9'^^tjav  9q:^  Aq  jo  's9SS9u:^iav 
Xq  'a\b^  ui  !^obj  J9q^o  Xub  sb  'p9qsi{qB:^s9  si  siq:^  puB 
'noi^u9:;ui  JO  asodjtid  pgjBpgp  9q!;  st  90U9SS9  9q';  5  Sui 

-^IJM.  UI  9q  n^^S  '^I  ^'^^^  in-*^  '^  JO  90U9SS9  9q:^  ^OU  SI 
%l      -Ug^^TJAl  JO  |BJO  '90U9piA9  Aq  p9qsqqB!}S9  SI  '^OBJ 

jaq^o  jCub  sb  'uoi:^BJBp9p  siqjQ  •q^B9p  J9^jb  iC^ja 
-dojd  siq  JO  uoT^isodsip  J9dojd  9q^  o;;  sb  puiui  SjUBin 
B  JO  uoI:^BJBp9p  oq^  SI  '9Jn:;'Bu  s^^i  uiojj  'tjm  y 

•STH^  .io  saxismba^  axv  wao^^i 
11  HaXdVHO 


FORM   AXD   REQUISITES.  45 

Upon  this,  Chancellor  Kent  observed :  "  I  should 
hope  to  see  one  day  a  law  that  no  nuncupative  will 
should  be  valid  in  any  case."  * 

The  case  in  which  these  words  were  used  was  a 
very  curious  one,  and  will  be  worth  while  to  be 
stated  somewhat  fully.  We  can  give  no  better 
statement  of  it  than  the  admirable  summary  given 
by  that  eminent  jurist  in  his  opinion,  where  the 
subject  of  nuncupative  wills  received  a  thorough 
discussion.  The  will  was  made  by  a  William 
Jones  on  the  11th  April,  1820,  and  was  as  follows: 
"  I  now  say,  as  I  have  repeatedly  said  before,  that 
I  leave  all  the  property  I  am  possessed  of  to  Mary 
Hazleton ;  I  do  this  in  consequence  of  the  good 
treatment  and  kind  attention  I  have  received  from 
her  during  my  sickness.  She  is  worthy  of  it.  No 
other  person  shall  inherit  my  property.  I  wish  you 
all  in  the  room  to  take  notice  of  this."  The  will 
was  witnessed  by  four  witnesses.  It  was  finally 
declared  invalid,  because  it  did  not  appear  the  tes- 
tator made  it  in  his  last  extremity,  and  as  there 
were  so  many  evidences  of  undue  influence.  The 
facts  were  as  given  by  Kent :  "  William  Jones  was 
an  Irishman  by  birth  and  a  religious  Catholic  by 
profession.  He  was  boi-n  in  the  county  of  Dublin, 
in  Ireland,  and  received  a  school  education  about 
thirty  years  before  his  death,  and  which  carries  us 
back  to  the  year  1790.  He  had  then  living  parents, 
brothers,  and  sisters,  and  he  was  the  youngest  of 
the  family.     He  was  aj^prenticed  to  a  house  carpen- 

•  Prince  v.  Hazleton,  20  Johns.  513. 


46  CURIOSITIES   OF   WILLS. 

ter  in  the  city  of  Dublin,  and  served  a  regular  ap- 
prenticeship of  seven  years.  When  this  service 
expired,  he  worked  as  a  journeyman  for  nine  or 
twelve  months,  and  then  emigrated  to  the  United 
States.  This  brings  us  in  the  history  of  his  life  to 
the  year  1798,  and  perhaps  that  fact  may  enable 
us  to  give  some  probable  solution  of  the  only  cir- 
cumstance that  seems  (if  we  except  the.  will)  to 
cast  any  shade  over  the  memory  of  this  man.  I 
allude  to  the  change  of  his  paternal  name,  0'  Coiv- 
nor,  for  that  of  Jones.  It  does  not  aj^pear  precise- 
ly when  he  changed  his  name,  but  I  refer  it  back  to 
that  period  as  the  probable  time,  and  presume  that 
he  and  his  family  wei*e  more  or  less  imijlicated  in 
the  rebellion  in  Ireland  in  1798,  in  consequence  of 
an  ill-fated  attempt  to  effect  a  revolution  in  that 
kingdom.  It  is  probable  that  he  may  have  emigrated 
for  safety;  and,  for  greater  safety,  laid  down  the 
name  of  0'  Connor,  which  was  then  memorable  in 
the  Irish  annals,  on  the  side  of  the  unfortunate. 
But  be  this  conjecture  as  it  may,  we  find  him  first 
at  New  York,  then  for  two  years  at  Savannah,  then 
living  for  twelve  or  fourteen  years  in  Cuba,  and 
learning  the  Spanish  language,  and  where  he  prob- 
ably made  his  fortune.  He  is  next  traced  on  his 
return  to  the  United  States  to  the  cities  of  Balti- 
more, Philadelphia,  and  New  York;  and  in  all  of 
them  he  seems  to  liave  had  business,  j^ecuniary  con- 
cerns, and  fi-iends.  These  are  the  few  and  imper- 
fect sketches  of  his  biography  to  be  selected  from 
the  case,  before  we  find  him  rich  in  the  fruits  of  his 
enterprise,  but  sick  with  a  disease  of  the  liver,  at 


FORM   AND   REQUISITES.  47 

the  boarding-house  of  Mrs.  Fox,  in  Cherry  street,  in 
New  York,  the  latter  end  of  March,  1820. 

"  Jones,  Avhile  at  the  house  of  Mrs.  Fox,  claimed 
to  be  worth  altogether  $65,000  in  property  existing 
in  New  York,  Philadelphia,  Baltimore,  and  the 
Island  of  Cuba ;  and  to  show  that  this  claim  had 
pretty  fair  pretensions  to  truth,  there  were  actually 
found  at  his  lodgings,  at  his  death,  bank-books 
showing  deposits  to  his  credit  in  one  or  more  banks 
of  New  York  to  between  thirteen  and  fourteen 
thousand  dollars. 

"  He  had  been  sick  at  Mrs.  Fox's  about  five  weeks 
when  he  is  said  to  have  made  the  will  now  under 
consideration.  During  that  time  he  had  one  Ellen 
Taylor,  a  colored  woman,  for  his  hired  nurse ;  and 
there  was  a  Mrs.  Hazleton,  who  had  rooms  and 
boarded  in  the  same  house,  who  also  acted  as  his 
nurse.  Whether  Jones  ever  saw  or  heard  of  Mi'S. 
H.  before  he  came  to  board  there,  does  not  appear, 
nor  have  we  in  the  case  any  distinct  lineaments  of 
the  character  which  Mrs.  H.  sustains,  or  the  busi- 
ness or  purpose  of  her  life.  She  was  able,  all  at 
once,  and  without  any  remarkable  display  of  good- 
ness or  any  adequate  cause,  to  gain  a  wonderful  as- 
cendancy over  the  affections  of  this  sick  man.  If 
her  story  be  true,  and  the  will  genuine,  she  obliter- 
ated from  Jones'  breast  the  sense  of  friendship,  the 
charities  of  religion,  the  deep-rooted  traces  of  na- 
tional affection,  every  tender  recollection  of  the 
ties  of  blood,  of  his  natal  soil,  of  the  school-fellows 
of  his  youth,  of  father  and  mother,  brother  and 
sister,  relative  and  friend.    He  was  persuaded  at 


48  CtTRIOSITIES    OF   WILLS. 

one  nod  to  pour  the  accumulated  treasures  of  his 
varied  life  into  the  lap  of  this  mysterious  woman — 
the  acquaintance  of  a  day ! " 

From  the  manifest  evils  arising  from  this  kind  of 
wills,  legislatures  are  not  disposed  to  favor  them ; 
they  seem  only  adapted  to  a  ruder  condition  of 
society  than  the  one  we  now  live  in.  So,  in  the 
Statute  of  Wills  in  England,  passed  in  1838,*  such 
wills  are  declared  invalid,  except  as  to  soldiers  and 
sailors ;  and  the  same  is  the  case  in  nearly  all  our 
American  States.  But  a  few  States  still  permit 
such  wills  made  by  persons  in  extremis,  and  be- 
queathing a  limited  amount  of  property.  They 
are  not  jDcrmitted  in  New  York,  excef»t,  as  in  the 
English  statute,  to  soldiers  and  sailors  on  actual 
service. t  They  are  in  California  of  property  to 
one  thousand  dollars,  and  then  must  be  proved  by 
two  witnesses,  one  of  whom  is  requested  by  the 
decedent  to  be  a  witness ;  and  the  will  must  be 
reduced  to  writing  within  thirty  days  after  death, 
and  proved  within  six  months  after  the  same  was 
uttered.  % 

Even  as  to  soldiers  and  sailors  great  strictness  is 
required.  In  the  first  place,  soldiers  must  be  on 
actual  military  service.  The  railitaiy  testament 
was  first  conceded  by  Julius  Caesar  to  all  soldiers, 
but  it  was  subsequently  limited  by  Justinian  to 
those  engaged  on  an  expedition ;  §  and  our  courts 
in  modern  times  have  invariably  adhered  to  the 
principle  that  there  must  be  actual  warfare. 

*  1  Vict.  ch.  26.  t  Civil  Code.  1289-90 

t  a  B.  S.  60.  §  Code,  lib.  6.  tit.  21. 


FORM    AND    REQUISITES.  49 

In  this  country,  the  cases  upon  the  subject  of 
nuncupative  wills  are  considerably  numerous  since 
the  last  civil  war.  In  a  late  case,  where  the  de- 
ceased, a  soldier,  had  been  duly  mustered  into  the 
United  States  service  during  the  late  civil  war, 
and  while  in  camp  wrote  a  letter  to  a  friend,  direct- 
ing the  disposition  of  the  amount  due  upon  certain 
securities  left  in  his  hands  among  the  brothers  and 
sisters  of  the  deceased,  as  the  holder  should  think 
proper,  and  that  all  his  other  property  should  go 
to  his  wife,  naming  her,  she  paying  his  debts,  and 
soon  after  started  on  an  expedition  or  raid  against 
Richmond,  in  which  he  was  made  prisoner,  and 
soon  after  died  in  prison,  the  will  was  held  good  as 
a  nuncupative  one,  and  entitled  to  probate  * 

Sailors  must  be  actually  serving  on  shipboard. 
Thus,  in  the  case  of  Lord  Hugh  Seymour,  the  com- 
mander-in-chief of  the  naval  force  at  Jamaica,  but 
who  had  his  official  residence  on  shore,  it  was  held 
that  he  did  not  jiroi^erly  come  Avithin  the  exception, 
for  that  he  was  not  "  at  sea  "  within  the  meaning  of 
that  expression,  and  that  a  nuncupative  will  made 
by  him  was  not  valid.f  It  was  held  in  New  York 
that  a  person  employed  as  cook  on  board  of  a 
steamship  should  be  classed  as  a  mariner  at  sea,  and 
therefore  entitled  to  make  a  nuncupative  will,  t 

*  Leathers  v.  Greenacre,  63  Maine  661. 
T  2  Curteis  339. 
1 4  Bradf .  154. 

C.  OF  W.— S. 


50  CURIOSITIES    OF   WILLS. 


Section  2. — Written  Wills. 

The  statute  law  of  almost  every  civilized  state 
at  the  present  time  requires  a  will  of  real  and  per- 
sonal jiroperty  to  be  in  writing,  with  the  exceptions 
noticed  in  the  first  section  of  this  chapter.  A  will, 
wholly  written  by  the  testator,  signed  and  dated 
by  him,  is  called  a  holographic  will^  and  is,  in  some 
States,  valid,  without  the  usual  formalities  required 
to  prove  wills.* 

The  law  has  not  made  requisite  to  the  validity  of 
a  will  that  it  should  assume  any  particular  form,  or 
be  couched  in  language  technically  aj^propriate  to 
its  testamentary  character.  It  is  suflScient  that  the 
instrument,  however  irregular  in  form,  or  inartifi- 

*  Such  a  will  is  valid  in  California,  Louisiana,  Tennessee,  and  North 
Carolina.  In  the  case  of  Clarke  v.  Ransome,  decided  in  the  Supreme 
Court,  California,  October,  1875,  the  following  document  was  on  this 
ground  held  to  be  testamentary  in  its  character : 

"  Deab  Ouo  Nance  : — I  wish  to  give  you  my  watch,  two  shawls,  and 
also  $3,000.  Your  old  friend,  E.  A.  Gobdon." 

It  appeared  in  evidence  that  for  some  years  Mrs.  Gordon  and  Miss 
Ransome,  who  was  the  person  meant  by  "  dear  old  Nance,"  had  been  on 
terms  of  intimacy.  Mrs.  Gordon  had  previously  executed  a  will,  by 
which  she  had  devised  to  her  brother  the  whole  of  the  estate,  with  the 
exception  of  several  specific  legacies,  one  of  which  was  to  Miss  Ran- 
some for  $1,000.  It  further  appeared  that  after  the  wHl  had  been  duly 
made  and  executed,  Mrs.  Gordon  desired  to  make  a  further  provision 
for  Miss  Ransome,  and  for  that  purpose  drew  up,  wholly  in  her  own 
handwriting,  and  delivered  to  Miss  Ransome,  the  paper  above  pro- 
pounded as  a  will.  The  court  held  that  this  paper  should  be  admitted 
to  probate  as  a  testamentary  instrument ;  but  against  this  Chief  Justice 
Wallace  gave  a  dissenting  opinion,  on  the  ground  that  the  paper  was  the 
mere  expression  of  a  wish,  and  was  not  intended  by  the  decedent  to 
operate  as  a  will. 

Vide  Pacific  Law  Rep.,  Nov.  9, 1875. 


FORM    AND    REQUISITES.  51 

cial  in  expression,  discloses  the  intention  of  the 
maker  respecting  the  posthumous  destination  of  his 
property ;  and  if  this  apj)ears  to  be  the  nature  of  its 
contents,  the  instrument  is  regarded  as  a  will,  if 
otherwise  witnessed  according  to  the  mode  pointed 
out  in  the  statute.  Professional  practice,  and  long- 
continued  custom,  however,  have  established  some 
technical  forms  of  expression.  As  if  to  appropri- 
ately mai'k  the  solemnity  of  the  act,  and  to  declare 
a  consciousness  of  it,  it  was  the  usual  way  to  com- 
mence a  will,  and  it  is  still  observed,  with — "  In  the 
name  of  God,  Amen ";  but  this  expression  is  now 
considered  too  formal  and  quaint,  and  of  late  the 
practice  is  to  introduce  a  will  in  a  less  formal  man- 
ner, thus :  "  I,  John  Doe,  of ,  in  the  State  of 

^5  do  hereby  make  and  publish  this  my  last 

will  and  testament,  hereby  revoking  all  former  wills 
by  me  at  any  time  made," 

It  was  also  customary  to  refer  to  the  bodily  and 
mental  condition  of  the  testator,  as,  "  I,  A  B,  being 
of  infirm  health,  but  of  sound  mind  and  disposing 
memory,  and  aware  of  the  uncertainty  of  life,  do 
now  make,  etc." ;  but  this,  to  a  great  extent,  is  ab- 
rogated. 

Usually,  the  first  direction  given  is  as  to  the  pay- 
ment of  debts  and  funeral  expenses;  but  this  is 
merely  formal  and  unnecessary,  as  the  law  would 
have  this  done  in  any  event ;  but  it  may  be  of  use 
to  show  that  the  subject  of  the  testator's  debts  was 
brought  distinctly  to  his  mind,  and  may  thus  aid  in 
the  construction  of  the  will.*    A  very  general  clause 

*  Bedfleld  on  Wills,  I,  p.  675. 


62  CURIOSITIES    OF   WILLS. 

in  a  -will,  without  many  exceptions,  is  one  aj^point- 
ing  one  or  more  executors.  Formerly,  it  was  con- 
sidered indispensable  to  the  validity  of  a  will  that 
an  executor  should  be  named  in  it  ;*  but  that  oj)in- 
ion  no  longer  obtains  either  here  or  in  England  ;t 
and  now  where  the  aj)pointment  of  an  executor  is 
omitted  in  a  will,  administration  is  granted  to  a 
person  with  the  will  annexed. 

Many  may  have  an  idea  that  a  formal  will  requires 
a  seal,  no  doubt  from  the  ordinary  phraseology  at  the 
close  of  a  will,  "  Signed,  sealed,  and  published," 
but  there  is  no  State  we  know  of  where  a  seal  is 
now  necessary  except  in  New  Hampshire.^:  The 
use  of  a  seal,  however,  will  be  required  when  a  tes- 
tator exercises  a  power  of  appointment  in  a  will 
derived  from  any  prior  will  or  settlement  ;§  but  if 
the  seal  be  omitted  it  will  not  render  the  will  void ; 
it  will  only  render  the  execution  void  as  far  as  the 
power  is  concerned.  For  instance :  if,  by  an  instru- 
ment under  seal,  a  power  is  given  to  a  married 
woman  in  the  nature  of  an  appointment  to  devise 
certain  real  estate,  in  such  a  case  she  will  be  re- 
quired to  execute  the  will  with  a  seal,  if  the  aj?- 
pointment  is  to  be  a  valid  one. 

The  ecclesiastical  courts  in  England  and  the 
courts  here  do  not  confine  the  testamentary  dispo- 
sition to  a  single  instrument,  but  they  will  consider 
papers  of  different  nature  and  forms,  if  not  incon- 


*  Swimb.  Pt.  I,  Sec.  3. 

t  Bedfleld  on  WiUs,  I,  p.  5. 

t  N.  H.  Kev.  Stat.  Oh.  150,  Sec.  6. 

g  Hight  V.  Wilson,  1  Dall.  94 ;  Arndt  v.  Amdt,  1  S.  &  R.  256. 


FORM   AND   KEQUISITES.  53 

sistent,  as  constituting  altogether  the  will  of  the 
deceased.*  It  is  immaterial  in  what  language  a 
will  is  written,  whether  in  English,  or  in  Latin, 
French,  or  any  other  tongue.f 

While  a  will  is  to  be  in  writing,^  the  law  insists 
upon  certain  solemnities  in  its  execution  to  properly 
evidence  the  testator's  act  and  intention,  without 
which  the  will  is  absolutely  void ;  and  courts  very 
strictly  construe  these  requirements,  because  they 
are  remedial,  in  order  to  guard  against  very  grave 
perils  and  mischief.  The  Statute  of  Frauds  required 
that  all  devises  and  bequests  of  any  lands  or  tene- 
ments should  be  in  writing,  signed  by  the  testator, 
or  by  some  other  person  in  his  presence,  and  by  his 
express  direction,  and  subscribed  in  his  presence  by 
three  or  four  credible  witnesses.  This  statute  has 
been  the  model  on  which  all  our  statutes,  relating 
to  the  proof  of  wills  in  the  different  States,  were 

*  CampbeU  v.  Logan,  2  Bradf .  90. 

T  Swimb.,  Pt.  4,  Sec.  25. 

tThe  statute  of  Pennsylvania  requires  every  will  to  "  be  in  writing," 
and  the  curious  question  was  recently  presented  to  the  Court  of  Common 
Pleas  of  Chester  County,  whether  a  ■writing  on  a  slate,  intended  by  the 
decedent  to  be  her  last  will  and  testament,  came  within  the  statute.  The 
court  thought  the  case  not  within  the  spirit  of  the  statute,  because  a 
slate  was  neither  intended  for  nor  adapted  to  writing  of  a  permanent 
character.  The  rule  has  been  carried  quite  far  enough  by  the  admis- 
sion to  probate  of  wills  written  with  lead  pencils,  as  was  done  in  Dyer's 
Estate,  3  Ecc.  E.  92,  and  in  Dickson  v.  Dickson,  1  Id.  222.  In  21  P  F. 
Smith,  i5i,  it  was  thought  that  a  will  should  not  bo  written  or  signed 
in  pencil,  on  account  of  the  facility  of  alteration ;  but  the  point  was  not 
decided.  In  Merritt  v.  Clason,  12  Johns.  102,  a  memorandum  required 
by  the  Statute  of  Frauds,  written  with  a  lead  pencil,  was  held  sufficient, 
and  in  Clasou  v.  Bailey,  H  Johns.  484,  this  point  was  afi&rmed.  In 
Byrnes  v.  Clarkson,  1  Phillim.  22,  it  was  ruled  that  a  codicil  written  in 
pencU  was  valid.  See  also  Geary  v.  Physic,  5  Barn,  and  Cress.  234,  and 
McDowell  V.  Chambers,  1  Strobh.  Eq.  347. 


54 


CURIOSITIES   OF   WILLS. 


framed.  Some  have  copied  it  literally,  others  have 
adopted  it  with  certain  necessary  modifications. 
Questions  had  arisen  under  this  statute  as  to  what 
the  legislature  meant  by  the  word  "  signed " ; 
namely,  whether  it  should  be  construed  in  its  strict 
sense,  and  by  analogy  to  other  instruments,  or 
whether  it  should  be  liberally  expounded  and  left 
open  as  a  question  of  construction  upon  intention 
to  be  inferred  from  the  facts  and  circumstances  at- 
tending each  particular  case.  The  construction 
had  been,  as  well  in  the  courts  of  England  as  here, 
that  the  writing  of  the  name  of  the  testator  in  the 
body  of  the  will,  if  written  by  himself,  with  the  in- 
tent of  giving  validity  to  the  will,  was  a  sufficient 
signing  within  the  statute.*  Thus  the  old  law 
stood,  and  the  mischief  of  it  was,  that  it  was  not 
necessary  for  the  testator  to  have  adopted  the  in- 
strument after  it  was  finished,  by  actually  signing 
the  same  at  the  close  of  the  will,  and  it  did  not  de- 
note clearly  that  he  had  perfected  and  completed  it. 
To  remedy  this  evil,  and  to  prevent  future  contro- 
versy as  to  whether  a  will  signed  by  the  testator  in 
any  other  part  of  the  instrument  than  at  the  end, 
denoted  a  complete  and  perfect  instrument,  statutes 
have  been  passed  in  some  States  requiring  the  will 
to  be  subscribed  by  thp  testator  at  the  end  thereof. 
The  statute  passed  in  England  in  the  first  year  of 
Victoria,  requires  that  the  will  "  shall  be  signed  at 
the  foot  or  end  thereof  by  the  testator,  or  by  some 
other  person,  in  his  presence  and  by  his  direction." 

*  Jarman  on  Wills,  70. 


FORM   AND   REQUISITES.  55 

Not-withstanding  the  language  of  the  Statute  of 
Frauds  as  to  signing,  without  indicating  how  or 
where,  is  still  retained  in  the  statutes  of  the  major- 
ity of  our  States,  except  in  Arkansas,  California, 
Connecticut,  Kentucky,  and  New  York,  where  it  is 
to  be  subscribed  at  the  end,  and  in  Ohio,  Pennsyl- 
vania, and  West  Vii'ginia,  where  it  is  to  be  signed 
at  the  end  of  the  will. 

The  requirements  of  the  New  York  statute  are  as 
strict,  if  not  the  strictest,  of  any  of  our  States; 
and  those  of  California  are  substantially  the  same 
by  the  recent  civil  code  of  that  State.* 

The  statute  is  in  its  terms  perfectly  explicit. 
Four  distinct  ingredients  must  enter  into  and  to- 
gether constitute  one  entire  complete  act,  essential 
to  the  complete  execution  of  the  instrument  as  a 
will.  1.  There  must  be  a  signing  by  the  testator 
at  the  end  of  the  will ;  2.  The  signing  must  take 
place  in  the  presence  of  each  of  the  witnesses,  or 
be  acknowledged  to  have  been  made  in  their  pres- 
ence ;  3.  The  testator  at  the  time  of  signing  and 
acknowledging  the  writing  shall  declare  it  to  be  his 
last  will ;  and  4.  There  must  be  two  witnesses  who 
shall  sign  at  the  end,  at  the  request  of  the  testa- 
tor.t 

There  must  be  a  concurrence  of  all  these  four  re- 
quisites to  give  validity  to  the  act,  and  the  omission 
of  either  is  fatal.  Neither  of  the  four,  which 
united  make  a  valid  execution  of  a  will,  may  be 
done  at  a  different  time  from  the  rest.     If  the  in- 

*  Civil  Code.  1276.  1 2  Bev.  Stat.  63. 


56  CURIOSITIES   OF   WILLS. 

strument  has  in  fact  been  signed  at  a  previous 
time,  then  the  signature  must  be  acknowledged  to 
the  subscribing  witnesses,  which  is  deemed  to  bo 
equivalent  to  a  new  signing  of  the  instrument.* 
They  cannot  all  be  done  at  the  same  instant  of 
time,  for  that  is  impracticable ;  but  at  the  same  in- 
terview, one  act  immediately  following  the  other, 
without  any  interval,  and  without  any  interruption 
to  the  continuous  chain  of  the  transaction. f 

We  shall  now  refer  to  cases  bearing  on  each  of 
these  requisites ;  and  it  will  be  seen  that  while  the 
courts  have  with  commendable  firmness  insisted 
upon  a  rigid  compliance  with  the  foi-mula  pres- 
cribed by  the  statute,  they  have  never  held  that  a 
literal  compliance  was  necessary.  No  particular 
form  of  words  is  required  to  comply  Avith  the  stat- 
ute. The  only  sure  guide  is  to  look  at  the  sub- 
stance, sense,  and  object  of  the  law,  and  with  the 
aid  of  these  lights  endeavor  to  ascertain  whether 
there  has  been  a  substantial  compliance. 

It  is  sometimes  still  a  matter  of  controversy  as 
to  what  may  be  considered  a  subscription  or  sign- 
ing of  the  will  at  the  end  or  foot  thereof.  In  Ton- 
aele  v.  Hall,:j:  the  writing  of  the  instrument  pro- 
pounded for  probate  commenced  on  the  first  of 
several  sheets  of  paper  stitched  together  immed- 
iately below  a  margin,  in  this  form :  "  In  the  name 
of  God,  Amen.  I,  John  Tonnele,  of  the  City  of 
New  York  being  of  sound  mind  and  memory,  and 

•Doe  V.  Eoc,  2  Barb.  200. 

t  Seguine  v.  Seguine,  2  Barb.  385,  395. 

t  i  ComBt.  140. 


FOEM   AND   KEQUISITES.  57 

considering  the  uncertainty  of  life,  do  make,  pub- 
lish, and  declare  this  to  be  my  last  will  and  testa- 
ment, in  manner  and  form  following,  that  is  to 
say," — and  was  continued  on  that  and  the  four  suc- 
ceeding sheets.  At  the  end  of  one  of  the  sheets 
was  the  signature,  and  following  was  the  usual  at- 
testation clause,  signed  by  three  witnesses.  The 
next  sheet  was  entirely  blank,  and  was  succeeded 
by  a  sheet  on  which  was  written,  "Map  of  the 
property  of  John  Tonnele  in  the  Ninth  and  Six- 
teenth Wards,  etc."  And  also  written  on  the  same, 
"  Reduced  map  on  file  in  the  Register's  office  in 
the  City  of  New  York."  The  map  indicated  the  posi- 
tion, by  numbers,  etc.,  of  various  lots  of  land  in  the 
City  of  New  York  which  the  will  purposed  to  dis- 
pose of,  but  it  was  not  signed  by  the  testator  nor 
by  the  witnesses.  In  several  clauses  of  the  will 
devising  the  real  estate,  reference  was  made  to  the 
aforesaid  map  ;  but  not  to  the  copy  of  the  map  an- 
nexed. The  point  taken  in  opposition  to  the  wiU 
was,  that  the  execution  of  the  instrument  was  not 
in  conformity  to  the  first  and  fourth  requisites  of 
the  statute ;  because,  as  was  insisted,  it  was  neither 
subscribed  hy  3 o\vn.  Tonnele,  nor  signed  by  the  wit- 
nesses at  the  end  of  it.  It  was  contended,  that  as 
the  map  annexed  should  be  regarded  as  a  component 
part  of  the  instrument,  at  the  time  of  its  execution, 
and  as  it  was  written  on  the  last  sheet  of  the  pa- 
pers composing  the  instrument,  it  was  necessarily 
the  end  of  the  instrument,  where  the  subscription 
by  the  testator  and  the  signing  of  the  witnesses 
should  have  been  made.     It  was  held  by  the  Court 


58  CUEIOSITIES   OF   WILLS. 

of  Appeals  that  the  will  was  subscribed  by  the  tes- 
tator at  the  end  of  the  will,  within  the  meaning  and 
intent  of  the  statute,  and  that  the  execution  thereof 
was  valid. 

In  the  case  of  the  will  of  Catharine  Kerr  before 
the  Surrogate  of  Ifew  York,*  the  closing  jDortion  of 
the  will  and  the  signature  were  as  follows : 

"  To  the  children  of  Mary  Dow,  residing  in  Ire- 
land in  County  Kilkenny,  Give  and  bequeath 
two  hundred  dollars  to  be  equally  divided  between 
them.  If  there  be  a  balance,  my  executors  will 
divide  it  among  mj  relations  that  are  not  herein 
mentioned.  Cathe^'^i^  Keee. 

"I  hereby  appoint  Mich' 1 1*1161311  of  2nd  st.,  and 
John  Kelly  of  9th.  st.,  as  my  executors  to  this  my 
last  will  and  testament. 

"Witnesses,  R.  I^in", 

Matthew  M.  Smith." 

"  I  hereby  order  my  executors  to  pay  all  my  law- 
ful and  debts  &  funeral  expenses — should  it  please 
the  Almighty  now  to  call  me.  This  they  will  do 
before  paying  any  legacy  above  mentioned. 

CathE  Keer." 

There  was  a  question  as  to  the  genuineness  of 
the  subscription,  the  two  witnesses  calling  her  Keer, 
and  the  two  subscriptions  being  of  that  name,  her 
Christian  name,  Catherine,  being  abbreviated,  whilst 
her  real  name  was  Kerr ;  and  several  previous  jsapers 
were  produced,  in  which  her  name,  proved  to  have 
been  signed  by  herself,  was  invariably  written  Catb- 

•  McGuire  v.  Kerr,  2  Bradf .  244. 


FORM   AND   REQUISITES.  59 

Qrine  Kerr,  in  full.  The  Surrogate  held  that  the 
form  of  the  will  was  fatally  defective,  because  the 
will  was  not  subscribed  by  the  testatrix  and  signed 
by  the  attesting  witnesses  at  the  end,  in  conformity 
with  the  requirements  of  the  statute. 

The  next  requisite  is  that  the  testator  shall  sign 
the  will  in  the  presence  of  the  witnesses,  or  acknowl- 
edge his  signature  to  thera,  if  it  has  been  signed 
previously.  The  New  York  statute  does  not  require 
the  witnesses  to  sign  in  the  presence  of  the  testator, 
as  the  California  statute  does.*  Hence,  a  difference 
of  opinion  has  arisen  as  to  whether  the  New  York 
statute  is  satisfied  if  a  testator  signs  a  will  at  one 
time,  and  afterwards  acknowledges  it  to  the  wit- 
nesses separately  at  different  times.  There  is  an 
opinion  that  the  witnesses  must  be  present  at  the 
same  time,  and  when  the  testator  subscribes  or 
acknowledges  the  instrument  ;t  but  it  has  been  laid 
down,  in  the  case  of  Butler  v.  Benson,:}:  that  a  sepa- 
rate acknowledgment  is  sufiicient.  However  that 
may  be,  no  careful  practitioner  will  ever  have  a 
will  executed  except  when  both  the  witnesses  are 
present;  and  the  attestation  clause  generally  ex- 
presses that  the  witnesses  signed  in  the  presence  of 
each  other. 

In  Whitbeck  v.  Patterson,§  William  Patterson, 
the  testator,  signed  the  wUl  in  the  presence  of  one 
Hughes,  who  had  prepared  it  for  him,  but  who  did 

*  Civil  Code,  1276. 
t  Dayton  on  Surrog.  p.  78. 

1 1  Barb.  533.    It  is  claimed  he  may  subscribe  in  presence  of  one,  and 
acknowledge  it  separately  to  the  other.    4  Kent,  516 ;  36  N.  Y.  416. 
S  10  Barb.  6C8. 


60  CUEIOSITEES    OF    WILLS. 

not  sign  it  as  a  witness.  The  two  then  went  to  a 
store,  where  they  found  the  three  persons  who 
signed  as  witnesses.  These  Avitnesses  agreed  in  the 
facts  that  Patterson  and  Hughes  came  into  the  store 
together,  and,  as  they  came  in,  Hughes  spoke  to 
them,  saying  that  he  had  a  paper  that  he  wished 
them  to  sign ;  that  it  was  Patterson's  last  will  and 
testament ;  that  Hughes  thereupon  read  the  attesta- 
tion clause  in  the  hearing  of  Patterson,  as  well  as 
the  witnesses,  and  then  asked  Patterson  if  that  was 
his  last  will  and  testament,  to  which  he  replied  that 
it  was.  One  of  the  witnesses  further  swore  that  he 
thought  the  question  was  then  asked  him  (the  tes- 
tator) about  his  signing  the  will,  and  the  reply  of 
Hughes  was,  that  "  he  signed  it  up  to  my  house" ; 
to  which  Patterson  said  "Yes."  This,  however, 
was  not  recollected  by  the  other  witnesses,  and 
Hughes  declared,  with  a  good  deal  of  confidence, 
that  nothing  was  said  in  the  store  about  his  having 
signed  it. 

The  Surrogate  refused  to  admit  the  will  to  pro- 
bate, on  the  gi'ound  that  the  testator  had  not  sub- 
scribed the  will,  or  acknowledged  the  subscription 
thereto  in  the  presence  of  the  attesting  witnesses ; 
but,  on  appeal,  the  decree  of  the  Surrogate  was 
reversed,  and  the  court  held  the  acknowledgment 
was  sufficient,  because  the  testator  was  present  and 
assented  when  Hughes  said  he  signed  it. 

The  third  subdivision  of  the  statute  provides 
that  the  testator,  at  the  time  of  making  the  sub- 
scription, or  at  the  time  of  acknowledging  the  same, 
shall  declare  the  instrument  so  subscribed  to  be  his 


FORM   AKD   REQUISITES.  61 

last  will  and  testament.  This  safeguard  was  con- 
sidered necessary,  in  view  of  the  fact  that  persons 
had  been  imposed  upon,  believing  they  were  exe- 
cuting a  dLEfei-ent  paper,  when  they  had  been  in- 
duced to  sign  a  will.  Only  a  few  States,  however, 
insist  on  this  formality ;  besides,  New  York,  Cali- 
fornia, New  Jersey,*  and  North  Carolina  require  a 
publication. 

There  cannot  be  any  uniform,  precise  mode  to 
make  this  declaration ;  it  is  sufficient  if  the  testator 
fully  and  intelligently  communicate  his  knowledge 
of  the  instrument  being  his  will  to  the  witnesses ; 
so  that  he  cannot  be  mistaken  as  to  its  nature,  and 
that  it  shall  be  so  understood  by  the  witnesses.! 
The  minds  of  the  parties  must  meet;  each  must 
understand  the  particular  business  he  is  engaged 
in.  And  this  mutual  knowledge  must  arise  from 
something  said,  done,  or  signified  contemporane- 
ously with  the  execution  of  the  instrument. J  It 
will  not  suffice  that  the  witnesses  have  elsewhere, 
and  from  other  sources,  learned  that  the  document 
which  they  are  called  to  attest  is  a  will ;  it  must  be 
a  clear  and  unequivocal  communication  of  the  fact 
from  the  testator  himself  in  some  manner  to  them 
at  the  time.§ 

The  leading  case  on  this  provision  of  the  statute 
is  that  of  Remsen  v.  Brinckerhoff,  ||  determined  in 
the  court  of  last  resort  in  1841.  This  case  arose  in 
the  Surrogate's  Court  in  New  York,  on  a  proceed- 

*  Den  V.  Mitton,  7  Halst.  70.  t  Torrey  v.  Bowen,  15  Barb.  304. 

ILewis  V.Lewis,  1  Kern.  222.        §  1  Denio,  33. 
li  26  Wend.  325. 
C.  oif  W.— «. 


62  CUEIOSITIES   OF   WILLS. 

ing  to  prove  the  will  of  Dorothea  Brmckerhoff. 
The  will  was  signed  by  the  testatrix  in  the  presence 
of  two  witnesses.  The  attestation  was  the  usual 
one  signed  by  the  witnesses,  showing  that  the  full 
requirements  of  the  statute  were  observed.  One  of 
the  witnesses,  on  the  trial,  testified  that  the  testa- 
trix executed  the  will  in  his  presence  by  writing 
her  name,  and  acknowledging  it  to  be  her  hand  and 
seal  for  the  purpose  therein  mentioned;  that  he 
subscribed  in  the  presence  of  the  testatrix ;  that 
the  will  was  not  read  to  the  testatrix,  nor  did  he 
read  it;  he  read  the  last  line  of  the  attestation. 
Nothing  passed  between  her  and  him  as  to  its  being 
a  will.  The  other  testified  that  he  saw  the  testatrix 
sign  the  instrument.  She  did  not  say  it  was  her 
will ;  but  acknowledged  her  signature  for  the  pur- 
poses therein  mentioned.  She  requested  him  to 
sign  his  name  as  a  witness,  and  directed  him  to 
write  his  place  of  residence.  He  testified  further 
that  he  never  saw  the  testatrix  before  that  time, 
and  remained  in  the  room  only  no  more  than  ten 
or  fifteen  minutes.  On  this  evidence  the  Surrogate 
admitted  the  will  to  probate.  Some  of  the  heirs 
and  next  of  kin  appealed  to  the  Circuit  Judge,  who 
confirmed  the  decree  of  the  Surrogate.  They  then 
appealed  to  the  Chancellor,  who  reversed  the  decree 
of  the  Surrogate.  Finally,  the  case  was  taken  to 
the  Court  of  Errors,  and  the  decision  of  the  Chan- 
cellor was  affirmed,  that  the  instrument  was  invalid, 
for  want  of  a  declaration,  at  the  time  of  subscribing 
or  acknowledging  the  subscription,  that  the  instru- 
ment was  a  will. 


FORM  AND   REQUISITES.  63 

A  late  case,  decided  in  the  New  York  Court  of 
Appeals  in  1875,  will  henceforth  be  an  authority  on 
this  point.  It  was  the  case  of  Thompson  v.  Sea- 
stedt.*  The  case  arose  on  an  appeal  from  the 
Supreme  Court,  reversing  a  decree  of  the  Surro- 
gate of  New^York  City,  refusing  to  admit  to  pro- 
bate the  will  of  Eliza  Seastedt,  on  the  ground  that 
it  was  not  fonnally  declared  by  her.  It  appeared 
that  the  will  was  drawn  by  direction  of  the  testa- 
trix as  her  will,  and  read  over  to  her  as  sucb ;  that 
she  appeared  to  read  it  over  herself,  remarked  it 
would  do,  and  signed  her  name  to  it,  and  procured 
two  of  the  witnesses  to  subscribe  their  names  to  it. 
The  witness  who  drew  the  will  testified  that  he  was 
asked  to  go,  to  the  house  to  draw  it,  and  was  a  wit- 
ness to  it,  although  not  dii-ectly  asked  to  sign  it. 
The  second  witness  said  that  he  heard  the  decedent 
ask  the  first  witness  to  sign  it  as  a  witness ;  and 
her  husband  swore  that  she  asked  both  of  the  other 
witnesses  to  sign  it.  The  second  witness  also  said 
that  she  asked  him  to  witness  the  signing  of  her 
name,  and  the  making  of  her  will,  and  her  husband 
said  she  took  it  after  all  had  signed  it,  and  put  it 
in  an  envelope.  It  also  appeared  that  the  testatx-ix 
signed  the  will  in  the  presence  of  the  witnesses,  and 
that  they  signed  it  in  her  presence^  and  in  the  pres- 
ence of  each  other ;  also,  that  the  wording  of  the 
instrument  declared  it  to  be  her  last  will  and  testa- 
ment, and  that  she  declared  it  to  be  such  at  the 
time  of  her  subscribing. 

The  Supreme  Court  held  that  the  proof  as  to  the 

*  Not  yet  rej>orted  ;  may  be  in  59  N.  T. 


64  CtTKIOSITIES    OF   WILLS. 

execution,  witnessing,  and  publication  was  sufficient 
to  entitle  the  will  to  probate;  that,  although  the 
testatrix  did  not,  in  words,  declare  the  instrument 
to  be  her  will,  she  treated  it  as  such,  and  designed 
the  witnesses  to  understand  it  to  be  such,  and  that  this 
was  equivalent  to  such  a  declaration,  and  was  suffi- 
cient to  satisfy  the  requirements  of  the  statute. 
On  appeal,  the  Court  of  Appeals  affirmed  this 
judgment,  in  an  opinion  by  Folger,  J. 

This  must  be  deemed  a  satisfactory  and  equitable 
decision,  and  will  have  a  tendency  to  check  the 
vexatious  and  expensive  litigation  so  ruinous  to 
heirs  and  to  an  estate,  whenever  contestants  think 
there  was  a  disregard  of  the  slightest  technical  requi- 
sites in  the  execution  of  a  will. 

The  fourth  and  last  requirement  of  the  statute  in 
New  York  is,  that  there  must  be  two  witnesses  who 
shall  sign  at  the  end  at  the  request  of  the  testator. 
In  the  majority  of  our  States,  only  two  witnesses 
are  required  to  properly  attest  a  will.  There  are, 
as  far  as  we  can  make  out,  about  ten  States  that  re- 
quire three  witnesses.  The  New  England  States  re- 
quire three  witnesses,  and  so  do  Florida,  Georgia, 
Maryland,  South  Carolina,  and  Mississippi,  but  in 
the  last  only  one  witness  is  required  for  a  will  of 
personal  property. 

It  is  observed  that  the  New  York  statute  does 
not  in  terms  require  the  witnesses  to  sign  in  the 
presence  of  the  testator  or  in  the  presence  of  each 
other,  as  the  most  of  our  States  do :  as,  for  instance, 
California,  Connecticut,  Georgia,  Massachusetts, 
and  many  others.     The  former  statute  in  the  State 


FOEM   AND   REQUISITES.  65 

required  a  signing  in  the  presence  of  the  testator, 
but  these  words  having  been  omitted  from  the  Re- 
vised Statutes,  it  has  been  decided  in  two  adjudi- 
cated cases  that  it  is  not  necessary  that  the  attest- 
ing witnesses  should  sign  their  names  in  the  pres- 
ence of  the  testator  in  the  strict  sense  of  the  re- 
quirement of  the  former  law.*  In  Ruddon  v.  Mc- 
Donald, the  testatrix  subscribed  the  will  in  a  small 
bedroom,  and  the  witnesses  signed  in  an  adjoining 
room.  The  door  between  the  two  rooms  was  open, 
but  the  place  where  the  witnesses  signed  was  in  a 
part  of  the  room  where  the  testatrix  could  not 
see  the  witnesses  signing  without  putting  her  head 
down  to  the  foot  of  the  bed,  if  she  could  then ;  and 
they  did  not  look  to  be  able  to  say  whether  they 
could  see  her  face  at  the  time  or  not.  In  such 
States  as  require  a  signing  in  the  presence  of  the 
testator  these  wills  would  not  be  entitled  to  pro- 
bate. Even  in  these  States,  a  strict  literal  compli- 
ance is  not  required ;  the  courts  adopt  what  is 
termed  a  doctrine  of  a  constructive  presence ; 
which  in  plain  language  is  just  this — if  a  testator 
could  see,  and  won't  see,  he  should  see,  and  must 
be  supposed  to  have  seen.  There  never  were  finer 
distinctions  made  on  any  matter  in  law  than  just 
on  this  point ;  indeed,  they  are  more  nice  than  wise, 
and  hair-splitting  was  never  carried  to  a  finer  point. 
Thus,  where  a  testator  lay  in  a  bed  in  one  room, 
and  the  witnesses  went  through  a  small  passage  in- 
to another  room,  and  there  set  their  names  at  a  ta- 
ble in  the  middle  of  the  room,  and  opposite  to  the 

♦Ruddon  v.  McDonald,  1  Bradf.  352  ;  Lyon  v.  Smith,  11  Barb.  124. 


66  CURIOSITIES   OF   WILLS. 

door,  and  both  that  and  the  door  of  the  room 
where  the  testator  lay  were  open,  so  that  he  might 
see  them  subscribe  their  names  if  he  would,  and 
though  there  was  no  positive  proof  that  he  did  see 
them  subscribe,  yet  that  was  sufficient  under  the 
statute,  because  he  might  have  seen  them ;  it  shall 
therefore  be  considered  in  his  presence.*  But  where 
the  attesting  witnesses  retired  from  the  room 
where  the  testator  had  signed,  and  subscribed  their 
names  in  an  adjoining  room,  and  the  jury  found 
that  from  one  part  of  the  testator's  room  a  person, 
by  inclining  himself  forward,  with  his  head  out  at 
the  door,  might  have  seen  the  witnesses,  but  that 
the  testator  was  not  in  that  part  of  the  room,  it 
was  held  that  the  will  was  not  duly  attested.!  It 
would  almost  seem,  from  these  and  other  decisions, 
that  the  validity  of  the  act  depended  upon  the 
range  of  the  organs  of  sight  of  the  devisor,  or  up- 
on the  agility  of  his  movements ;  whether  he  were 
able  to  turn  his  body  to  the  foot  of  the  bed,  or 
stretch  his  neck  out  of  the  door. 

In  Georgia,  the  testator  must  have  been  in  such 
a  position  as  to  be  able  to  see  the  witnesses  sign, 
to  constitute  presence.^:  And  where  the  witnesses 
did  not  sign  in  the  same  room  where  the  testator 
was,  it  raises  a  presumption  that  it  was  not  in  his 
presence ;  but  if  the  jury  find  that  he  might  have 
seen  it,  and  knew  it  was  going  on,  and  approved  it, 
it  is  good.§ 

The  whole  requirements  of  the  statute  are  gen- 

*Davy  V.  Smith,  3  Salk.  395.  t  Doe  v.  Manifold,  1  M.  &  S.  294. 

t  Eeed  v.  Eoberts,  26  Ga.  294.  §  Lamb  v.  Girtman,  26  Ga.  625 


FORM   ANT)   EEQUISITES.  67 

erally  embodied  in  an  attestation  clause  whicli  is 
signed  at  the  end  by  witnesses.  This  is  no  part  of 
the  will,  and  might  be  omitted  without  endanger- 
ing the  will,  provided  the  witnesses,  whose  names  are 
subscribed,  can  testify  as  to  the  observance  of  the 
various  requirements ;  but  it  is  unsafe  to  trust  to  the 
memory  of  witnesses,  and  almost  always  the  attes- 
tation clause  is  appended.  In  those  States  where 
no  subscribing  is  required,  the  following  is  a  good 
form : 

"  Signed,  sealed,  published,  and  declared,  by  the 
said  A  B,  the  said  testator,  as  and  for  his  last  will 
and  testament,  in  the  presence  of  us,  who,  in  his 
sight  and  presence,  and  at  his  request,  and  in  the 
sight  and  presence  of  each  other,  have  subscribed 
our  names  as  witnesses  thereto." 

The  following  is  suited  to  the  requirements  of 
the  Revised  Statutes  of  New  York : 

"  Subscribed  and  acknowledged  by  the  testator, 
A  B,  in  the  presence  of  each  of  us,  who  have  sub- 
scribed our  names  as  attesting  witnesses  thereto  at 
the  request  of  the  said  testator.  And  the  said  tes- 
tator, A  B,  at  the  time  of  making  such  subscrip- 
tion and  acknowledgment,  did  declare  this  instru- 
ment so  subscribed  to  be  his  last  will  and  testament." 

A  more  general  form  is  the  following : 

"  Signed,  sealed,  published,  and  declared  by  the 
testator,  to  be  his  last  will  and  testament,  in  the 
presence  of  us,  who,  at  his  request,  and  in  his  pres- 
ence, and  in  the  presence  of  each  other,  have  sub- 
scribed our  names  as  witnesses." 


CHAPTER   III. 

Testamentary   Capacity. 

As  a  general  rule,  this  capacity  exists  ;  but  there 
are  certain  conditions  which  prechxde  the  exercise 
of  this  privilege,  because  of  an  inability  to  exercise 
it  either  safely,  wisely,  or  intelligently ;  and  these 
conditions  may  be,  with  respect  to  age,  physical  or 
mental  incapacity,  and  coverture. 

SECTiojf  1. — Incapacity  as  to   Age. 

The  age  at  which  a  person  is  permitted  to  exer- 
cise this  right  varies  with  the  nature  of  the  property, 
whether  it  be  real  or  personal  property.  Under 
the  old  common  law,  a  male  was  qualified  to  make 
a  will  of  personal  property  at  fourteen,  and  a  fe- 
male at  twelve  ;*  and  this  was  the  rule  in  Eng- 
land until  1838.t  This  was  the  rule  of  the  Ro- 
man law ;  but  now  it  is  changed  by  statute  both 
in  England  and  in  this  country.  In  New  York, 
males  require  to  be  of  the  age  of  eighteen,  and 
females  of  the  age  of  sixteen,  before  they  can  make 
a  will  of  personal  property,  t 

In  many  of  our  States,  the  same  age  is  required 

*  Black,  n,  497.  t  Kedfle.d  on  Wills,  1. 15. 

1 2  Eev.  Stat.  60. 

[  68  ] 


TESTAMENTARY   CAPAClTT.  69 

for  making  a  will  of  personal  as  for  real  property ; 
and  as  a  general  rule,  the  age  required  is  twenty- 
one  ;  but  in  three  of  our  States,  California,  Con- 
necticut, and  Nevada,  a  person  of  the  age  of  eight- 
een is  qualified  to  make  a  will  of  personal  and  real 
estate.  In  some,  a  female  attains  her  majority  for 
this  purpose  earlier  than  a  male  person,  as  in  Il- 
linois, Maryland,  and  Vermont,  where  a  female  is 
qualified  at  eighteen. 

"With  regard  to  the  reckoning  of  the  period  of  a 
person's  majority,  there  is  a  novel  and  exceptional 
mode  in  law.  Thus,  if  a  person  be  born  on  the  first 
of  February,  at  eleven  o'clock  at  night,  and  the  last 
day  of  January,  in  the  one-and-twentieth  year,  at 
one  o'clock  in  the  morning,  he  makes  his  will  and 
dies,  it  is  a  good  will,  for  he,  at  the  time,  was  of 
age.  This  rule,  first  laid  down  by  Lord  Holt,*  is 
well  established  by  sound  authority.!  With  regard 
to  which,  Redfield  remarks :  "  We  feel  comj^elled 
to  declare  that  the  rule  thus  established  in  comput- 
ing the  age  of  capacity,  seems  to  us  to  form  a  very 
singular  departure,  both  from  all  other  legal  modes 
of  computing  time,  and  equally  from  the  commonly- 
received  notions  on  the  subject." $ 

Section  2.  —  Physical  oe  Mental  Incapacity. 

The  physical  incapacity  of  the  deaf  and  dumb  for- 
merly disqualified  them  from  making  a  will.  Black- 
stone  lays  down  the  rule  :  §  "  Such  persons  as  are 

*  1  Salk.  U,  t  Black.  I,  463  ;  2  Kent,  233. 

t  WUls,  I,  2(K  i  Com.  n.  497. 


70  CTTRIOSITIES   OF   TVTLLS. 

born  deaf,  blind,  and  dumb,  as  they  have  always 
wanted  the  common  inlets  of  understanding,  are 
incapable  of  having  animum  testandi,  and  their 
testaments  are  therefore  void."  And  in  Bacon's 
Abridgment,*  it  is  said :  "  A  man  who  is  both  deaf 
and  dumb,  and  is  so  by  nature,  cannot  make  a  will; 
but  a  man  who  is  so  by  accident  may,  by  writing  or 
signs,  make  a  will."  But  since  this  class  of  persons 
have,  of  late,  been  brought  to  a  considerable  intel- 
ligence by  the  humane  efforts  of  worthy  men  to 
commimicate  knowledge  to  them,  there  is  no  longer 
any  reason  or  sense  in  excluding  them  from  the  tes- 
tamentary privilege.  However,  in  their  cases, 
greater  circumspection  is  needed  in  communicating 
with  them  as  to  their  intention,  and  a  stricter  regard 
is  paid  to  the  observance  of  the  requirements  of 
execution.  The  question  was  carefully  examined 
by  the  Surrogate  of  New  York,t  with  the  following 
results : 

The  law  does  not  prohibit  deaf,  dumb,  or  blind 
persons  from  making  a  will.  Defects  of  the  senses 
do  not  incapacitate,  if  the  testator  possesses  suffi- 
cient mind  to  perform  a  valid  testamentary  act. 
The  statute  does  not  require  a  will  ta  be  read  to 
the  testator  in  the  presence  of  the  witnesses ;  but  it 
is  proper  to  do  so  when  the  testator  is  blind  and 
cannot  read.  In  such  cases,  the  evidence  must  be 
strong  and  comijlete  that  the  mind  accompanied 
the  will,  and  that  the  testator  was  in  some  mode 
made  cognizant  of  its  provisions.     This  may  be 

♦  WUlB,  B.  t  Weir  V.  Fitzgerald,  2  Bradf .  42. 


TESTAMENTARY    CAPACITY.  71 

established  by  the  subscribing  witnesses,  or  by- 
other  proof. 

So,  also,  it  seems  a  drunken  man,  who  is  so  exces- 
sively drunk  that  he  is  deprived  of  the  use  of  his 
reason  and  understanding,  cannot  make  a  will  dur- 
ing that  time ;  for  it  is  requisite,  when  the  testator 
makes  his  will,  that  he  be  of  sound  and  perfect 
memory ;  that  is,  that  he  have  a  competent  memory 
and  undei-standing  to  dispose  of  his  estate  with 
reason.* 

We  come  now  to  treat  of  that  incapacity  which 
gives  rise  to  most  frequent  and  difficult  litigation, 
and  upon  which  judicial  discrimination  is  most 
generally  exercised — the  incapacity  of  those  who 
are  of  unsound  mind,  or  persons  non  compos  mentis. 

There  is  no  investigation  in  the  whole  domain  of 
law  that  is  attended  with  so  many  lamentable 
phases,  where  the  foibles,  indeed,  the  ludicrous 
side,  of  human  nature,  are  more  exposed ;  for  it 
happens  that  those  who  will  most  carefully  and  ten- 
derly screen  aman's  weaknesses,  vagaries,  and  eccen- 
tricities whilst  he  is  living,  will,  if  a  contest  takes 
place  in  which  they  are  interested,  after  his  death, 
most  readily  reveal,  in  all  their  nakedness  and  bold- 
ness of  •  outline,  the  infirmities  and  superstitions  of 
the  deceased.! 

As  a  principle  of  law  of  universal  application,  a 
person  of  unsound  miijd  is  incompetent  to  make  a 

*Swinb.  Pt.  II,  Sees.  1  and  G. 

t  No  better  illustration  of  this  ever  took  place  than  the  case  of  the 
■will  of  Captain  Ward,  over  whose  will  a  remarkable  contest  is  taking 
place  [1875]  in  Detroit. 


72  CUEIOSITIES   OP  WILLS. 

valid  disi^osition  of  his  i^roperty,  either  before  or 
after  his  decease,  except  during  a  lucid  interval. 
The  only  difficulty  is,  to  determine  exactly  and  un- 
erringly the  particular  persons  who  may  be  thus 
classed,  and  to  agree  upon  some  mode  or  standard 
by  which  we  can  class  such  unfortunate  people. 
Here  is  the  difficulty ;  for  all  men  do  not  view  a 
l^erson's  acts  in  the  same  manner,  and  are  not  simi- 
larly impressed  by  them.  What,  to  some,  would 
infallibly  be  the  exhibitions  of  a  diseased  mind, 
may,  to  others,  be  the  harmless  frolics  of  a  person 
of  odd  and  eccentric  manners.  And,  just  for  this 
reason,  the  decisions  of  courts  have  fluctuated,  and, 
on  this  subject,  have  been  the  least  satisfactory. 
When  we  lay  down  a  definition  of  insanity,  and 
agree  upon  it,  we  are  next  met  with  the  further 
difficulty,  to  bring  the  facts  of  a  person's  life  or  ac- 
tions within  it,  and  so  to  classify  them. 

What  is  the  definition  of  a  person  non  compos 
mentis  ?  The  law  has  to  depend  on  medical  writ- 
ers for  this  information.  Taylor,  in  his  Medical 
Jurisprudence,  gives  us  a  definition  as  follows : 
"  The  main  character  of  insanity,  in  a  legal  view,  is 
said  to  be  the  existence  of  delusion ;  i.  e.,  that  a 
person  should  believe  something  to  exist  which  does 
not  exist,  and  that  he  should  act  upon  this  belief." 
Another  definition  is  this :  "  Where  there  is  delusion 
of  mind,  there  is  insanity ;  that  is,  when  i)ersons 
believe  things  to  exist  which  exist  only,  or,  at  least, 
in  that  degree  exist  only,  in  their  own  imagination, 
and  of  the  non-existence  of  which  neither  argument 


TESTAMENTARY   CAPACITT.  73 

nor  proof  can  convince  them :  these  are  of  unsound 
mind."* 

The  rule  of  the  common  law,  until  within  the  last 
hundred  years,  was,  that  it  required  that  a  person 
should  be  absolutely  a  lunatic,  that  there  should  be 
entire  alienation  of  mind,  in  order  to  incapacitate 
him  from  making  a  will;  and  there  was  no  such 
theory  then  as  partial  insanity,  or  monomania,  which 
the  law  takes  notice  of  in  modem  times.  The  rise 
and  acceptance  of  this  theory  mark  an  epoch  in  legal 
adjudications;  it  is  certainly  an  advance  in  the 
science  of  law  in  the  last  century. 

The  germ  of  this  theory  was  first  broached  in 
the  celebrated  case  of  Greenwood.f  In  that  case, 
Mr.  Greenwood,  a  barrister,  whilst  insane,  took  up 
an  idea  that  his  brother  had  administered  poison  to 
him,  and  this  became  the  prominent  feature  of  his 
insanity.  In  a  few  months  he  recovered  his  senses, 
and  was  able  to  attend  to  his  business,  but  could 
never  divest  his  mind  of  the  morbid  delusion  that 
his  brother  had  attempted  to  poison  him,  under  the 
influence  of  Avhich  (so  said)  he  disinherited  him. 

On  a  trial  in  the  Court  of  King's  Bench  upon  an 
issue  devisavit  vel  non,  a  jury  found  against  the 
will;  but  a  contrary  verdict  was  had  in  another 
court,  and  the  case  ended  in  a  compromise.  On 
the  theory  of  the  common  law,  as  it  then  stood,  this 
will  being  made  in  a  lucid  interval  should  have  been 
valid.t 

*  Sir  John  NichoU,  in  Dew  v.  Clark,  3  Add.  79. 

t  White  V.  Wilson,  13  Vesey,  88. 

t  The  case  of  Lucas  v.  Parsons,  24  Ga.  640,  was  very  similar  to  this 

C.  OP  W.— ^. 


74  cimiosiTiES  OF  wills. 

The  case  in  which  the  law  first  sanctioned  the 
view  of  partial  insanity,  which  is  also  one  of  the 
landmark  cases  therefore,  was  the  case  of  Dew  v. 
Clark,*  which  excited  great  interest,  and  received 
a  very  thorough  examination  by  one  of  the  ablest 
judges  of  modern  times.  Sir  John  Nicholl.  It  was 
proved  that  the  testator  regarded  his  daughter  as 
invested  with  singular  depravity,  a  peculiar  victim 
of  vice  and  evil,  the  special  property  of  Satan  from 
her  birth,  and  in  consequence  disinherited  her. 
The  syllabus  of  the  case  presents  in  so  clear  and 
concise  manner  the  pith  of  the  decision,  that  it  will 
be  useful  to  quote  it : 

"  Partial  insanity  is  good  in  defeasance  of  a  will 
founded  immediately  (so  to  be  presumed)  in  or  up- 
on such  partial  insanity.  If  A,  then,  makes  a  will, 
j^lainly  inofficious  in  respect  to  B,  and  is  proved^  at 
the  time  of  making  it^  to  have  been  under  morbid 
delusion  as  to  the  character  and  conduct  of  B,  the 
Court  will  relieve  by  pronouncing  this  will  to  be  in- 
valid, and  holding  A  to  have  died  intestate." 

It  is  from  this  case,  as  a  starting  point,  has  arisen 
the  theory  of  monomania,  as  aj^plied  to  testament- 
ary capacity.  Henceforth  a  valuable  and  practicable 
rule  was  established,  subsequently  recognized  and 
enforced  in  the  best  considered  cases  both  in  Eng- 
land and  America — a  rule  not  so  much  depending 
on  precedent  as  it  does  on  sound  reason  and  argu- 
ment.   There  must  be  two  elements,  co-existing,  to 

case  of  Greenwood.    There,  the  testator's  delusiou  was  in  respect  to  his 
eldest  son,  whom  he  disinherited.    The  wiU  was  set  aside. 
*  3  Add.  75. 


TESTAMENTARY   CAPACITY.  75 

afford  sufficient  ground  for  pronouncing  a  will  in- 
valid at  the  instigation  of  relatives  and  others,  who 
deem,  themselves  cut  off  from  the  bounty  of  a  testa- 
tor by  his  monomaniacal  delusions. 

First.  There  must  be  a  plainly  inofficious  will ; 
or  a  will  wanting  in  natural  affection  and  duty. 

Second.  There  must  be  morbid  delusion  actually 
existing  at  the  time  of  making,  in  respect  to  the 
persons  cut  off,  or  prompting  the  provisions  of  the 
inofficious  instrument. 

This  theory  is  now  consistently  followed  in  the 
courts  of  this  country,  and  an  examination  of  a 
few  remarkable  and  historical  cases  will  illustrate 
the  application. 

It  is  thus  adopted  as  a  principle  of  decision  in 
Seaman's  Friend  Society  v.  Hopper,*  by  Judge  De- 
nio :  "  If  a  person  persistently  believes  supposed 
facts,  which  have  no  real  existence  except  in  his 
perverted  imagination,  and  against  all  evidence  and 
probability,  and  conducts  himself,  however  logically, 
ujion  the  assumj)tion  of  their  existence,  he  is,  so  far 
as  they  are  concerned^  under  a  morbid  delusion,  and 
delusion  in  that  sense  is  insanity.  If  the  deceased, 
in  the  present  case,  was  unconsciously  laboi'ing  un- 
der a  delusion,  as  thus  defined,  in  respect  to  his 
wife  and  family  connections,  who  would  have  nat- 
urally been  the  objects  of  his  testamentary  boimty 
when  he  executed  his  will,  or  when  he  dictated  it, 
and  the  court  can  see  that  its  dispository  provisions 
were  or  might  have  been  caused  or  affected  by  the 
delusions,  the  instrument  is  not  his  will,  and  cannot 

*33N.  Y.  C19. 


76  CURIOSITIES    OF   WILLS. 

be  supported  as  such  in  a  court  of  justice."     The 
same  was  the  ruling  in  Leach  v.  Leach.* 

Still,  there  needs  to  be  a  careful  limitation  of  this 
theory.  If  we  Avere  to  undertake  to  class  all  those 
who  exhibit  aberrations  of  conduct  in  various  di- 
rections of  life,  who  labor  under  hallucinations, 
and  a  wild  imagination  in  regard  to  certain  matters, 
whose  credulity  or  whims  pi'ovoke  our  mirth  as 
much  as  our  astonishment,  as  jjossessing  a  diseased 
mind,  we  should  class  among  such  some  of  the 
most  singularly  gifted  and  acute  minds  of  the 
world.     We  all  know  of  numerous  cases  in  which 

"  Some  one  peculiar  quality 
Doth  so  possess  a  man,  that  it  doth  draw 
All  his  effects,  his  spirits  and  his  powers 
In  their  conflusions  all  to  run  one  ■way." 

Hence  we  must  distinguish  between  mere  eccen- 
tricity and  monomania.  In  monomania,  a  man  is 
not  conscious  of  entertaining  opinions  different  from 
the  mass  of  men,  and  refuses  to  be  convinced  of 
laboring,  in  any  degree,  under  mental  unsoundness ; 
the  eccentric  man  is  aware  of  his  peculiarity,  and 
persists  in  his  course  from  choice,  and  in  defiance  of 
the  poiJular  sentiment.  A  remarkable  case  of  eccen- 
tricity, as  the  court  determined,  bordering  very  close 
on  monomania,  was  in  the  case  of  Morgan  v.  Boys,t 
where  the  will  was  upheld,  on  the  ground  that  there 
was  no  satisfactory  proof  of  actual  vmsoundness  of 
mind.  The  testator  devised  his  property  to  a  stran- 
ger, thus  wholly  disinheriting  the  heir,  or  next  of 

*11  Penn.  L.  r.  179.  t  Taylor,  Med.  Jur.  p.  657. 


TESTAMENTARY    CAPACITY.  77 

kin,  and  directed  that  his  executors  should  "  cause 
some  parts  of  his  bowels  to  be  converted  into  fiddle 
strings — that  others  should  be  sublimed  into  smell- 
ing salts,  and  the  remainder  of  his  body  should  be 
vitrified  into  lenses  for  optical  purposes."  In  a  let- 
ter attached  to  the  will,  the  testator  said :  "  The 
world  may  think  this  to  be  done  in  a  spirit  of  sin- 
gularity, or  whim,  but  I  have  a  mortal  aversion  to 
funeral  pomp,  and  I  wish  my  body  to  be  converted 
into  purposes  useful  to  mankind."  The  testator 
was  shown  to  have  conducted  his  affairs  with  such 
prudence  and  ability,  that,  so  far  from  being  imbe- 
cile, he  had  always  been  regarded  by  his  associates, 
through  life,  as  a  person  of  indisputable  capacity.* 

Some  wills  have  been  refused  probate  upon  the 
ground  of  a  disgusting  fondness  for  animals,  evinced 
by  the  testators  during  their  lives  or  in  the  testa- 
mentary act.  In  one  case,  the  testatrix,  being  a  fe- 
male, unmarried,  kept  fourteen  dogs  of  both  sexes, 
which  were  provided  with  kennels  in  her  drawing- 
room.f 

In  another  case,  a  female,  who  lived  by  herself, 
kept  a  multitude  of  cats,  which  were  provided  with 
regular  meals,  and  furnished  with  plates  and  nap- 
kins.    This  strange  fondness  for  animals,  in  solitary 

*  Mr.  William  Kensett,  whose  will  was  proved  in  Doctors'  Commons, 
London,  in  1855,  left  his  body  to  the  Directors  of  the  Imperial  Gas  Com- 
pany, London,  to  be  placed  in  one  of  their  retorts,  and  consumed  to 
ashes ;  if  not,  he  directed  it  to  be  placed  in  the  family  grave  in  St.  John's 
Wood  Cemetery,  to  assist  in  poisoning  Uie  neighborhood.  Generally  the  cu- 
rious wills  are  home-made,  but  this  of  Mr.  Kensett  was  made  by  a  so- 
licitor. 

t  Taylor,  p.  658. 


78  CUEIOSITIES    OF   WILLS. 

females,  is  not  altogether  unusual,  and  is  not  to  be 
regarded  as  any  certain  indication  of  insanity.* 

We  will  now  refer  to  three  cases  with  some  pai*- 
ticularity,  originating  in  the  Surrogate's  Court  in 
New  York,  each  of  which  is  very  curious  and  in- 
structive, and  in  which  we  can  perceive  the  aj^plica- 
tion  of  the  rule  regarding  monomania. 

The  first  is  the  case  of  Thompson  v.  Quimby.f 
There  were  several  reasons  assigned  by  the  contest- 
ants for  their  attack  upon  Mr.  Thompson's  will. 
Among  them  was  the  allegation  "  that  the  decedent 
was  laboring  under  delusions  amounting  to  insanity, 
and  had  not  a  disposing  mind  during  the  prepara- 
tion, or  at  the  time  of  the  execution  of  the  will." 
The  instrument  was  drawn  and  executed  during 
his  last  illness,  and  but  a  short  time  before  his 
death.  It  was  a  voluminous  document,  and  in  it 
some  provision  was  made  for  many  of  his  descend- 
ants and  kinsfolk,  but  the  bulk  of  his  large  estate 
(about  $400,000)  was  left  for  charitable  or  religious 
purposes. 

*Bedfield  on  WiUs,  I,  p.  84. 

In  June,  1828,  the  London  papers  recorded  the  singular  •wiU  of  a  tes- 
tator named  Garland,  containing  the  following  clause:  I  bequeath  to  my 
monkey,  my  dear  and  amusing  Jacko,  the  sum  of  £10  sterling  per  an- 
num, to  be  employed  for  his  sole  use  and  benefit ;  to  my  faithful  dog 
Shock,  and  my  well-beloved  cat  Tib,  a  pension  of  £5  sterling ;  and  I 
desire  that,  in  case  of  the  death  of  either  of  the  three,  the  lapsed 
pension  shall  pas3  to  the  other  two,  between  whom  it  is  to  be  equally 
divided.  On  the  death  of  all  three,  the  sum  appropriated  to  this  pur- 
pose shall  become  the  property  of  my  daughter  Gertrude,  to  whom  I 
give  the  preference  among  my  children,  because  of  the  large  family  she 
has,  and  the  difficulty  she  finds  in  bringing  them  up. — 111.  London  News, 
March  2d,  1874. 

t  2  Bradf .  449. 


TESTAMENTAEY   CAPACITY.  79 

The  testimony  established  that  the  testator  was 
a  believer  in  many  superstitions  of  a  vulgar  charac- 
ter, and  had  held  them  with  great  pertinacity  for 
many  years.  Among  other  delusions,  it  was  claimed 
he  believed  in  the  black  art;  that  he  read  and 
experimented  upon  the  teachings  of  magic ;  was 
familiar  with  disembodied  spirits;  that  he  could 
work  spells  by  formula  or  incantation ;  that  he 
could  cure  diseases  by  amulets,  or  by  papers  bear- 
ing certain  cabalistic  inscriptions,  which  were  to  be 
worn  about  the  person  of  the  sufferer.  He  pro- 
fessed to  know  where  Captain  Kidd's  treasures 
were  secreted  at  Montauk  Point,  and  actually,  in 
company  with  another,  undertook,  by  the  aid  of  a 
divining  rod,  to  locate  the  exact  spot  where  the 
riches  were  buried.  The  experiment  was  a  failure, 
because,  as  he  declared,  the  charm  under  which  he 
worked  was  bToken  by  the  inopportune  remarks  of 
his  attendant.  On  one  of  these  occasions  he  beheld 
the  apparition  of  the  devil  (it  seems,  he  had  a  belief 
in  that  personage)  in  the  shape  of  a  large  bull,  and 
spoke  of  this  taurine  manifestation  of  the  father  of 
evil  with  great  seriousness.  It  was  also  alleged 
that  he  claimed  to  see  ghosts ;  that  he  believed  in  the 
supernatural  character  and  significance  of  dreams, 
in  the  philosopher's  stone,  in  clairvoyance,  spiritual- 
ism, mesmerism,  magic  glasses,  and  that  he  owned  a 
whistle  with  which  he  could  get  everything  he 
wanted.  This,  and  much  more  to  the  same  effect, 
was  adduced  as  testimony  to  prove  the  insanity  of 
the  testator. 

On  the  other  side,  it  was  shown  that  the  testator 


80  CUEIOSITIES   OF   WILLS. 

was  a  shrewd  and  intelligent  man  of  business,  clear 
and  iirm  in  his  judgments.  He  was  largely  engaged 
in  affairs ;  was  connected  with  moneyed  institutions ; 
had  succeeded  in  accumulating  wealth  by  his  own 
efforts ;  was  associated  in  large  and  responsible  en- 
terprises of  commerce,  ^nd  was  a  regular  attendant 
at  Dr.  Spring's  Presbyterian  church. 

While  the  Surrogate  did  accredit  all  that  was 
deposed  to,  to  sustain  his  insanity,  he  did  arrive  at 
this  conclusion :  "  After  making  every  possible  rea- 
sonable allowance,  I  have  no  doubt  that  Mr.  Thomp- 
son's mind  was  impressed  with  a  sincere  belief  in 
many  absurd  notions.  There  seems  sufficient  evi- 
dence to  show  that  he  believed  in  mesmerism,  clair- 
voyance, divining  and  mineral  rods,  dreams,  and 
spiritual  influences.  He  searched  for  the  sujjposed 
deposits  of  Kidd,  and  ascribed  his  failure  in  two 
instances  to  the  utterance  of  certain  words  by  the 
operator.  That  he  said  he  saw  the  devil  in  the 
shape  of  a  bull  seems  to  be  well  established.  He 
believed  likewise  in  the  efficacy  of  cures  for  rheuma- 
tism, and  fever  and  ague."  Now,  there  was  nothing 
whatever  to  connect  any  of  these  aberrations  or 
infatuations  of  the  testator  with  the  provisions  of 
his  will,  or  with  any  one  of  them ;  they  did  not 
affect  his  testamentary  disposition  of  his  property ; 
and  there  could  not,  therefore,  have  been  a  success- 
ful impeachment  of  his  will  on  the  ground  of  mono- 
mania, or  partial  insanity.  The  Surrogate  decreed 
in  favor  of  the  will,  and  the  Supreme  Court  sus- 
tained his  decree. 

The  next  case  we  allude  to,  to  f urthei  furnish  an 


TESTAMENTARY   CAPACITY.  81 

illustration  of  the  rule,  is  the  recent  case  of  the 
Bonard  Will.  This  case  is  of  the  very  greatest 
importance,  because  it  was  argued  with  iinusual 
skill  and  ability,  and  the  testimony  of  the  medical 
experts  was  sifted  with  a  thoroughness  and  minute- 
ness which  elicited  much  instruction  upon  the  more 
obscure  phenomena  of  mental  disease,  and  the  facts 
revealed  being  such  as  to  present  very  distinctly 
the  question  of  the  testamentary  capacity  of  one 
who  entertained  singular  tenets  of  a  so-called  faith. 
It  will  be  advisable  to  state  the  facts  somewhat 
fully.  Louis  Bonai-d,  a  native  of  France,  died  at 
the  city  of  New  York,  in  the  Roman  Catholic  hos- 
pital of  St.  Vincent,  on  the  20th  day  of  February, 
1871.  His  life  had  evidently  been  an  eventful  one; 
for,  while  the  testimony  leaves  in  doubt  much,  and 
fails  altogether  to  account  for  more  of  his  antece- 
dent history,  it  was  known  that  he  had  been  a  trav- 
eler and  a  trader  in  South  and  Central  America, 
and  that  he  had  been  a  dealer  in  sham  jewelry; 
that  he  came  to  this  country  some  time  prior  to 
the  year  1855,  and  had  brought  with  him  money ; 
that  he  had  had  losses,  but  at  length  became  success- 
ful, and  made  investments  in  real  estate,  which 
enabled  him  to  accumulate  a  fortune  amounting,  at 
the  time  of  his  death,  to  about  one  hundred  and 
fifty  thousand  dollars.  During  the  period  of  his 
residence  in  New  York,  he  lived  as  a  miser.  He 
preferred  the  society  and  companionship  of  artisans 
and  mechanics.  He  had  no  relatives  in  Amei'ica 
nor  in  Europe,  so  far  as  was  ascertained  at  the  time 
of  the  trial,  although  it  has  since  transpired  that  he 


82  CURIOSITIES    OF   WILLS. 

has  kindred  in  France.  He  was  a  man  of  erratic 
habits  and  singular  beliefs,  the  latter  of  which 
seemed  to  intensify  as  his  age  advanced.  He  was  a 
misanthrope ;  but  was  possessed  of  an  unbounded 
affection  for  the  brute  creation.  The  evidence 
shows  that  he  was  a  believer  in  metempsychosis ; 
that  he  expressed  the  opinion  that  there  might  be 
an  emperor  in  any  animal  he  beheld ;  that  he 
remonstrated  with  a  person  who  suggested  it  would 
be  humane  to  kill  an  injured  kitten,  because,  he 
averred,  there  was  a  human  soul  in  the  animal's 
body.  But  he  was  a  man  dextrous  and  cunning  in 
mechanical  arts.  He  constructed  machines  for  vari- 
ous pm-poses ;  he  had  mental  resources  likewise, 
and  was  a  reader  of  books.  The  testimony,  fairly 
viewed,  showed  that  he  railed  at  religion  and  priests ; 
yet  he  died  in  the  peace  of  the  Roman  CathoHc 
Church,  and  in  full  communion.* 

There  aj)peared  also  the  fact  that  Mr.  Bonard 
combined  with  his  ardent  love  of  animals  an  un- 
bounded admiration  for  the  benevolence  of  Mr. 
Henry  Bergh.  Memoranda  were  found  among  his 
papers  which  plainly  showed  he  had  some  ulterior 
purpose  concerning  that  gentleman.  On  the  11th 
of  February,  1871,  and  while  he  was  very  ill,  he 
made  a  will,  bequeathing  a  portion  of  his  proj)erty 
to  two  of  his  friends.  On  the  13th  he  made  an- 
other, revoking  the  former,  and  left  all  his  estate, 
real  and  personal,  to  the  Society  for  the  Prevention 
of  Cruelty  to  Animals,  of  which  Mr.  Bergh  was  then, 

*I  am  indebted  to  an  admirable  essay  by  Edward  Patterson,  Esq.,  of 
the  New  York  Bar,  for  the  full  facts  in  this  case. 


TESTAMENTARY   CAPACITY.  83 

as  now,  the  honored  president.  Here  was  a  case, 
bold  in  its  outlines,  and  presenting  the  salient  feat- 
ures of  a  dogma  of  a  heathen  creed,  constituting 
the  avowed  belief  of  a  man  who  was  born  and  who 
died  in  the  Catholic  faith.  The  opinion  of  the 
learned  Surrogate  is  very  able  and  interesting.  He 
declares  that  the  belief  which  Mr.  Bonard  held  did 
not  constitute  insanity;  that  "if  a  court  is  to  as- 
cribe insanity  to  a  man,  or  a  class  of  men,  consti- 
tuting a  sect  according  to  his  or  their  opinion  or 
belief  as  to  a  future  state,  the  logical  deduction 
would  necessarily  be,  that  a  major  portion  of  all 
mankind,  comprised  in  all  other  and- different  sects, 
were  of  unsound  mind,  or  monomaniacs  on  that 
subject."  The  learned  Surrogate  then  proceeds  to 
consider  the  facts  of  this  case,  not  as  presenting  one 
of  general  insanity,  but  as  one  in  which  the  only 
appearance  of  unsoundness  of  mind  consisted  in 
the  alleged  monomania  concei'ning  the  transmigra- 
tion of  souls.  But  he  adverts  to  the  fact  that  there 
was  no  connection  necessarily  of  this  belief  with 
the  terms  of  the  will — that  there  was  nothing  in  tJie 
will  to  show  that  he  held  the  opinions  alleged  any 
more  than  he  was  impressed  with  a  belief  in  utter 
annihilation  after  death ;  nor  was  there  any  testi- 
mony to  associate  any  provision  of  the  will  with 
a  belief  respecting  the  future  condition  of  the  hu- 
man soul.  These  considerations,  coupled  with  the 
further  fact  that  "the  testator  had  neither  wife 
nor  child,  father  nor  mother,  nor  any  known,  near, 
or  remote  relatives  living,  or  others  on  whom  he 
was  or  felt  himself  under  obligation  to  bestow  his 


84  CITBIOSITIES    OF   WILLS. 

property,"  induced  the  court  to  sustain  the  will  and 
overrule  the  allegation  of  mental  incajDacity. 

But  let  us  suppose  that,  actuated  by  this  belief, 
so  uncommon  in  the  present  day,  Mr.  Bonard,  hav- 
ing before  his  mind  the  fate  of  an  itinerant  cur  run- 
ning around  the  city,  yelled  and  hooted  at  by  idle 
lads,  or  stunned  by  a  policeman's  baton,  had  feared 
that  his  soul  after  death  might  pass  into  the  body  of 
such  a  hajDless  vagrant,  and,  under  the  impression 
of  this  possible  fate,  had  provided  a  safe  asylum 
where  such  unfortunates  might  find  shelter  from  the 
pelting  storm ;  and  still  further,  that  there  Avere  rel- 
atives who  would  appear  and  contest  the  will.  Then 
we  introduce  quite  a  different  and  a  new  element  into 
the  consideration  of  the  case. 

This  would  have  indicated  that  the  dispository 
provisions  were  intended  by  the  testator  for  his  own 
physical  comfort  and  benefit  in  another  sphere  of 
physical  existence,  and  would  have  furnished  one 
and  the  principal  element  of  that  quality  of  un- 
soundness of  mind  which  the  law  recognizes  as  such 
in  cases  of  disputed  wills. 

A  late  case  in  New  York,  decided  in  June,  1875, 
by  the  Surrogate,  is  another  illustration.  This  was 
the  case  of  the  will  of  Harriet  Douglas  Cruger, 
made  when  the  decedent  was  seventy-nine  years  of 
age,  and  in  which  she  disj)Osed  of  the  bulk  of  her 
very  large  estate  to  the  American  Bible  Society, 
and  the  Board  of  Foreign  Missions  of  the  Presby- 
terian Church.  The  history  of  the  lady's  life  is  an 
eventful  and  interesting  one.  Belonging  to  a  fam- 
ily of  wealth  and  standing,  jjossessed  of    a  large 


TESTAMENTARY   CAPACITY.  85 

private  fortune,  and  endowed  by  education  and 
training  with  rare  personal  and  mental  accomplish- 
ments, she  mai'ried  early  in  life,  and  met  with  dis- 
appointment and  misfortune ;  for  it  was  soon  fol- 
lowed by  a  separation,  and  a  law  suit  which  contin- 
ued for  over  eight  years,  between  lierself  and  her 
husband.  She  had  some  nephews  and  nieces,  to 
whom,  at  one  time,  she  expressed  an  intention  of 
leaving  her  property.  In  the  year  1866,  she  suf- 
fered an  injury  which  affected  hei-  mind,  and  then, 
at  times,  was  undoubtedly  a  raving,  excited  lunatic. 
Her  pastor,  the  Rev.  Dr.  Paxton,  and  her  physician, 
Dr.  Parker,  testify  to  her  condition  then  as  one  of 
undoubted  lunacy.  She  had  on  her  mind  a  delusion 
that  the  devil  was  bodily  present  under  her  bed, 
and  because  of  this  was  in  the  greatest  anxiety  and 
terror.  She  told  her  pastor  of  it,  and  further  com- 
municated to  him  her  intention  to  give,  as  a  means 
for  her  soul's  salvation,  the  most  of  her  property  to 
the  religious  and  charitable  societies  of  her  church. 
He  very  prudently  dissuaded  her  from  this,  pro2> 
erly  instructing  her  that  her  salvation  could  not  de- 
pend on  such  an  act,  and  endeavoring  to  reason  her 
out  of  her  delusion,  but  to  no  purpose.  In  the  fall 
of  1867,  a  will  was  prepared  by  Charles  O'Connor, 
■  who  was  deceived  as  to  her  condition,  giving  her 
property  to  the  societies  named.  The  will  was  con- 
tested, and  rejected,  according  to  the  established 
rule,  that  her  insane  delusion,  acting  on  her  mind  at 
the  time,  affected  the  disposition  of  her  property, 
and  her  will  was  clearly  the  offspring  of  such  a  de- 
lusion. 

C.  OP  W  —8. 


86  CURIOSITIES    OF   WILLS. 

In  the  case  of  Austen  v.  Graham,*  the  testator 
was  a  native  of.  England,  bnt  had  lived  in  the  East, 
and  was  familiar  with  Eastern  habits  and  supei'sti- 
tions,  and  professed  his  belief  in  the  Mohammedan 
religion.  He  died  in  England,  leaving  a  will,  which, 
after  various  legacies,  gave  the  residue  to  the  poor 
of  Constantinople,  and  also  towards  erecting  a  cen- 
otaph in  that  city,  inscribed  with  his  name,  and 
bearing  a  light  continually  burning  therein.  The 
court  pronounced  the  testator  to  be  of  unsound 
mind,  principally  upon  the  ground  of  this  extraor- 
dinary bequest,  which  sounded  like  folly,  together 
with  the  wild  and  extravagant  language  of  the  tes- 
tator, proved  by  parol.  But  on  appeal  it  was  held 
that  as  the  insanity  attributed  to  the  testator  was 
not  monomania,  but  general  insanity,  or  mental  de- 
rangement, the  proper  mode  of  testing  its  existence 
was  to  review  the  life,  habits,  and  opinions  of  the 
testator,  and  on  such  a  review  there  was  nothing  al>- 
surd  or  unnatural  in  the  bequest,  or  anything  in  his 
conduct  at  the  date  of  the  will  indicating  derange- 
ment, and  it  was  therefore  admitted  to  probate. 

SECTioiir  3. — Senile  Dementia. 

The  imbecility  and  feebleness  of  mind  resulting 
from  extreme  old  age  is  another  cause  of  testament- 
ary incapacity.  Not  that  the  law  fixes  a  limit  be- 
yond which  it  is  presumed  a  testator  cannot  exer- 
cise the  testamentary  disposition  of  his  j^ropcrty  in- 

*29  Eng.  L.  and  Eg,.  38. 


TESTAMENTARY   CAPACITY.  87 

telligently ;  but  it  takes  into  account  the  well  known, 
familiar  instances  of  the  loss  of  a  jrerson's  memory 
and  mental  capacity,  owing  to  the  decrepitude  of 
old  age,  and  it  accepts  evidence  in  those  instances 
where  senile  decay  is  alleged,  as  to  the  ability  of  an 
aged  person  to  rightly  and  understandingly  make 
his  will.  It  was  said,  in  a  case  in  the  Ecclesiastical 
Court  in  England,  that  "extreme  old  age  raises 
some  doubt  of  capacity,  but  only  so  far  as  to  excite 
the  vigilance  of  the  court."  * 

But  if  a  man  in  his  old  age  becomes  a  very  child 
again  in  his  understanding,  and  becomes  so  forget- 
ful that  he  knows  not  his  own  name,  he  is  then  no 
more  fit  to  make  his  testament  than  a  natural  fool, 
a  child,  or  a  lunatic,  t 

Courts  are  not  disposed  to  accept  every  state- 
ment regarding  the  eccentric  or  weak  movements 
of  an  old  person  as  incapacitating  such  a  one  from 
making  a  will ;  on  the  contrary,  there  is  every  dis- 
position to  permit  such  a  one,  if  not  unmistakably 
enfeebled  in  intellect,  or  unduly  influenced,  to  exer- 
cise a  right  that  throws  around  one,  at  such  a  pe- 
riod, a  dignity  and  power  entitling  them  to  the  res- 
pectful regards  of  those  who  otherwise  might  not 
bestow  upon  them  the  attention  due  to  the  help- 
lessness of  old  age.  Chancellor  Kent  well  expressed 
this  leaning  of  courts,  in  the  case  of  Van  Alst  v. 
Hunter,  t  He  says :  "  A  man  may  freely  make  his 
testament,  how  old  soever  he  may  be It  is 

*Kinleside  v.  Harrison,  2  Phillm.  410. 

1 1  Wms.  Exrs.  36 ;  Potts  v.  House,  6  Ga.  324. 

t  5  Johns.  Ch.  U8. 


150  CURIOSITIES    OP    WILLS. 

one  of  the  painful  consequences  of  old  age,  that  it 
ceases  to  excite  interest,  and  is  apt  to  be  left  soli- 
tary and  neglected.  The  control  -which  the  law 
still  gives  to  a  man  over  the  disposal  of  his  prop- 
erty is  one  of  the  most  efficient  moans  which  he 
has,  in  protracted  life,  to  command  the  attention 
due  to  his  infirmities.  The  will  of  such  an  aged 
man  ought  to  be  regarded  with  great  tenderness, 
when  it  appears  not  to  have  been  procured  by 
fraudulent  acts,  but  contains  those  very  dispositions 
which  the  circumstances  of  his  situation  and  the 
course  of  the  natural  affections  dictated." 

In  the  case  of  Maverick  v,  Reynolds,*  it  appeared 
that  Mrs.  Maverick,  at  the  time  of  making  the  will 
offered  for  proof,  was  ninety  years  of  age,  and  the 
probate  was  contested  on  the  ground  of  testament- 
ary incompetency  and  vindue  influence.  It  was  shown 
that  though  the  old  lady  did  not  remember  the 
decease  of  her  son  and  his  wife,  that  she  had  suffi- 
cient intelligence  to  inquire  about  a  certain  one  of 
her  houses,  its  repairs,  and  the  collection  of  the 
rent.  One  witness  stated,  as  instances  of  her  bad 
memory,  that  she  forgot  to  pay  her  a  dollar  she 
had  borrowed  (a  defect  of  memory  not  confined  to 
old  age)  ;  that  she  was  in  the  habit  of  making  state- 
ments, and  afterwards  denying  she  had  made  them, 
(not  confined  to  old  age,  by  any  means)  and  that 
she  would  repeat  the  same  questions  after  they  had 
been  answered.  As  an  instance  of  the  popular  be- 
lief as  to  the  capacity  of  old  age,  one  witness  said : 
"  She  had  a  bad  memory ;  she  was  like  other  old  peo- 

*  2  Bradf .  360. 


TESTAMENTARY    CAPACITY.  89 

pie  eighty  years  old ;  we  consider  them  childish." 
Another  witness,  a  lady,  testified :  "  As  long  as  I 
can  bring  my  memory  to  bear,  (a  considerable  time, 
it  appeared)  she  has  been  childish.  In  my  opinion, 
she  was  childish  twenty-five  years  ago.  She  would 
sing  childish  and  foolish  songs,  and  tell  foolish  sto- 
ries, which  I  considered  unbecoming  for  a  woman 
of  her  years,  and  the  people  would  all  laugh  at  it. 
She  would  talk  sometimes  of  getting  married,  and 
would  fancy  she  was  making  ready  to  be  married." 
Against  all  this  was  the  testimony  of  her  pastor. 
Rev.  Dr.  Berrian,  that  her  conversation  was  devout 
and  pertinent,  and  he  considered  her  a  rather  re- 
markable person  for  her  age.  Her  physician  also 
testified  that  he  never  observed  any  indication  of 
unsound  mind. 

Surrogate  Bradford,  in  an  able  opinion,  examined 
the  evidence  carefully  and  at  length,  and  came  to 
the  conclusion  to  admit  the  will  to  probate.  About 
her  levity,  he  remarks :  "  It  is  worthy  of  remark, 
that  persons  attaining  great  age  often  possess  a 
large  degree  of  that  cheerful  and  lively  manner 
which  characterizes  youth,  and  which  probably  in 
them  contributes  greatly  to  a  green  old  age,  when 
others,  not  so  old,  and  possessing  less  of  this 
sprightliness  and  vivacity,  appear  more  decrepid 
and  stricken  in  years." 

As  a  principle  of  such  cases,  he  announces : 
"  Great  age  alone  does  not  constitute  testamentary 
disqualification,  but,  on  the  contrary,  it  calls  for 
protection  and  aid  to  fui-ther  its  wishes.  When  a 
mind  capable  of  acting  rationally,  and  a  memory 


90  CimiOSITIES    OP   WILLS. 

sufficient  in  essentials,  are  shown  to  have  existed, 
and  the  last  will  is  in  consonance  with  definite  and 
well  settled  intentions,  it  is  not  unreasonable  in  its 
provisions,  and  has  been  executed  with  fairness." 

Section  4. — Coverture. 

The  incapacity  arising  from  coverture  is  to  a 
great  extent  removed,  and  is  gradually  disappear- 
ing by  remedial  legislation,  and  for  this  reason  it 
will  not  be  necessary  to  treat  of  it  at  much  length. 

There  has  been  a  tendency,  for  many  years  past, 
to  remove  the  various  property  disabilities  attaching 
to  a  married  woman,  and  which  were  only  to  be 
justified,  if  then  at  all,  by  quite  a  different  state  of 
social  organization  from  the  present.  Perhaps  in  no 
branch  of  the  law  have  there  been  so  many  radical 
changes  as  in  that  part  pertaining  to  the  status  of 
a  married  woman.  A  lawyer  who  had  only  in  his 
mind  the  old  common-law  theory  and  rules,  and 
had  neglected  to  make  himself  familiar  with  mod- 
ern legislation  on  this  subject,  would  find  himself 
strangely  bewildered  to  define  a  married  woman's 
rights  and  powers  at  the  present  time. 

Still,  testamentary  power  did  not  come  as  soon 
as  other  rights.  Even  when  the  right  to  a  separate 
and  independent  ownership  of  property  was  grant- 
ed, the  right  to  a  testamentary  disposition  did  not 
accompany  it ;  as,  for  instance,  in  the  State  of  New 
York,  the  right  to  retain  for  her  own  use  any  jDcr- 
sonal  or  real  proj^erty  coming  to  her  during  mar- 
riage, free  from  any  control  of  the  husband,  was 


TESTAMENTARY   CAPACITY.  91 

granted  in  1848,  but  it  was  not  until  the  next  year 
she  was  empowered  to  dispose  of  it  by  will. 

Married  women  were  excepted  from  the  Statute 
of  Wills  of  the  reign  of  Henry  VIII,  which  first 
allowed  the  disposition  of  real  estate  by  will  in 
England ;  but  they  frequently  exercised  testament- 
ary disposition  under  a  power  given  them  when 
an  estate  was  conferred  upon  them  to  their  separate 
use.* 

They  had  what  was  called  a  power  of  appoint- 
ment by  will,  giA^en  by  the  donor  of  the  estate,  who 
was  presumed  to  make  the  will  through  them  as  an 
instrument. 

They  could  only  make  a  will  of  personal  property 
by  the  consent  of  the  husband  under  the  old  law,t 
and  this  is  the  case  yet  in  a  few  States.  In  Massa- 
chusetts, a  married  woman  can  dispose  of  only  half 
of  her  personal  property  by  will  without  the  con- 
sent of  her  husband ;  %  and  some  such  restriction 
exists  in  many  of  our  States. 

The  law  of  the  American  States  in  regard  to  the 
separate  estate  of  the  wife  being  exclusively  under 
her  control,  and  sixbject  to  any  disposition  on  her 
part,  is  fast  verging  towards  the  rules  of  the  Ro- 
man oivil  law,  which  allowed  a  married  woman  the 
same  testamentary  capacity,  in  all  respects,  as  a 
feme  sole.  §  In  most  of  the  more  important  and 
commercial  States,  the  wife's  right  to  dispose  of  her 
estate  by  will,  both  real  and  personal,  is  recognized 

*  2  Kent  175.  t  Gen.  Stat.,  1855. 

t  Tucker  v.  Inman,  4  M.  &  G.  10i9.    §  Black.  11,  497. 


92  CURIOSITIES    OF   WILLS. 

to  the  fullest  extent  by  statute.  *  The  only  general 
restriction  is,  that  she  cannot  defeat,  in  her  will  of 
her  real  estate,  her  husband's  right  of  curtesy.  In 
some  States,  where  the  estates  by  dower  and  cur- 
tesy are  abolished,  this  restriction,  of  course,  cannot 
exist,  as,  for  instance,  in  California. 

In  N'ew  York,  the  power  to  dispose  of  her  sepa- 
rate real  estate  by  will  seems  to  be  unrestricted,  for 
there  is  no  limitation  mentioned.  But  opinions  dif- 
fer on  this  question  :  some  hold  that  the  husband's 
right  of  curtesy  is  not  cut  off  by  the  statute,  while 
others  hold  that  the  whole  unrestricted  disposition 
of  her  property  is  given,  and  that  she  can  defeat 
her  husband's  curtesy,  even  if  issue  be  born  and 
the  estate  become  vested.  The  matter  is  in  a  little 
uncertainty,  because  we  have  not  as  yet  an  authori- 
tative opinion  of  the  highest  court  on  the  subject, 
since  the  remedial  statutes  wei'e  passed.  We  are 
inclined  to  think,  however,  that  the  wife  can  defeat 
her  husband's  right  of  curtesy  by  a  disposition  of 
her  estate  by  will.f 

It  would  be  impracticable  to  give  the  various 
statutes  of  the  States  on  this  subject,  and,  besides, 
it  would  be  useless,  as  the  changes  are  very  fre- 
quent, and  what  would  be  correct  for  a  State  to- 
day may  to-morrow  be  obsolete ;  we  have  only  en- 
deavored to  give  some  general  information  on  the 
subject. 

*  Redfleld  on  Wills,  1,  26.  t  2  Lans.  (N.  Y.)  21 


CHAPTER  IV. 

LEGACIES. 

People  generally  understand  quite  well  what  is 
meant  by  a  legacy  in  a  will ;  but  there  is  a  popular 
meaning  attached  to  the  word,  which  differs  from 
the  strict  legal  meaning.  Popularly,  we  suppose  a 
legacy  to  be  anything  —  property  of  any  kind, 
whether  real  or  personal — left  to  a  pei-son  in  a  will ; 
whereas,  the  strict  legal  meaning  is,  that  it  is  a  gift 
of  money,  or  some  particular  thing,  left  to  a  person 
in  a  will.  "When  real  estate  is  given,  we  then  term 
it  a  devise,  in  a  legal  point  of  view  ;  but  the  word 
bequest  is  a  more  general  term,  as  it  may  designate 
cither  a  legacy  or  a  devise. 

In  this  chapter,  we  shall  treat  of  legacies  :  1.  As 
to  their  Quality ;  2.  Vested  or  Contingent  /  3.  Con- 
ditional;  4.  Payment;  and  5.  Tlie  Person  who 
may  take. 

Section  1. — As  to  theie  Quality. 

Of  legacies,  there  are  two  kinds — a  general  legacy, 
and  a  specific  legacy ;  with  the  former  is  classed 
what  is  termed  a  pecuniary  legacy.  A  legacy  is 
general  when  it  is  so  given  as  not  to  amount  to  the 
giving  of  some  particular  thing,  or  money,  belong- 
ing to  the  testator.  A  legacy  is  specific  when  it 
is  a  bequest  of  a  specified  part  of  the   testator's 

193] 


94  CtJKIOSITIES    OF    A\aLLS. 

personal  estate,  which  may  be  distinguished  from 
all  others  of  the  same  kind.  Thus,  for  example, 
"I  give  a  diamond  ring"  is  a  general  legacy,  which 
may  be  satisfied  by  the  delivery  of  any  ring  of  that 
kind ;  while  "  I  give  the  diamond  ring  presented  to 
me  by  A"  is  a  specific  legacy,  which  can  only  be 
fulfilled  by  the  delivery  of  the  identical  ring  men- 
tioned ;  for  the  object  is  accurately  referred  to  and 
described,  and  the  legacy  can  only  be  satisfied  by  a 
delivery  in  specie.* 

Again,  if  the  testator  have  many  brooches  and 
horses,  and  bequeath  "  a  brooch"  or  "  a  horse  "  to 
B,  in  these  cases  it  is  a  general  legacy ;  for  it  is  un- 
certain, from  the  description,  whether  any  2Jarticu- 
lar  brooch  or  horse  was  intended;  so  that  the 
bequest  may  be  satisfied  by  the  delivery  of  some- 
thing of  the  same  species  as  that  mentioned.!  But 
a  bequest  "  of  such  part  of  my  stock  of  horses  as 
A  shall  select,  to  be  fairly  appraised,  to  the  value 
of  $800,"  or  "  of  all  the  horses  which  I  may  have  in 
my  stable  at  the  time  of  my  death,"  is  specific.^ 

A  bequest  to  a  wife  in  the  following  words  :  "  I 
give  and  bequeath  to  my  wife,  A,  the  annual  sum 
of  £300  sterling  each  and  every  year  during  her 
natural  life,  in  order  that  she  may  live  in  quiet  and 
easy  circumstances,"  and  which,  with  other  lega- 
cies afterwards  given  to  her,  was  expressed  to  be 
in  lieu  of  dower,  was  held  to  be  specific. 

If  there  be  an  error  in  the  description  of  the 
chattel  intended  to  be  specifically  given,  the  mis- 

*  Toucht.  433        1 1  Atk.  417.       t  Kichards  v.  Richards,  9  Price  219. 


LEGACIES.  95 

take  may  be  of  such  a  nature  as  not  to  permit  a 
failure  of  the  specific  bequest.  If,  therefore,  A, 
having  one  horse  only,  which  is  white,  bequeath  it 
to  B  by  the  words  "  my  black  horse,"  the  mistake 
is  obvious  and  easily  remedied,  and  the  legatee  will 
be  entitled  to  the  specific  horse,  although  it  be  not 
of  the  color  described ;  for  there  can  be  no  doubt  of 
that  being  the  horse  intended  for  him,  and  the 
legacy  will  be  specific  *  If  the  testator  had  two 
white  horses  of  different  values,  and,  intending  one 
of  them  in  particular  for  B,  bequeathed  it  to  him  by 
the  words,  "  my  white  horse,"  it  is  presumed  that 
evidence  is  admissible  to  show  which  of  the  two 
horses  was  intended.f 

As  respects  the  doctrine  of  specific  bequests,  the 
intention  of  testators  upon  this  subject,  as  in  every 
question  of  the  construction  of  wills,  is  the  princi- 
pal object  to  be  ascertained ;  and  it  is,  therefore, 
necessary  that  the  intention  be  either  expressed  in 
reference  to  the  thing  bequeathed,  or  otherwise 
clearly  appear  from  the  will.  The  intention  must 
be  clear,  and  courts  in  general  are  averse  to  con- 
struing legacies  to  be  specific.  % 

With  respect  to  legacies  for  money,  securities  for 
money,  debts,  etc.,  under  some  circumstances  even 
pecuniary  legacies  are  held  to  be  specific,  as  of  a 
certain  sum  of  money  in  a  certain  bag  or  chest ;  § 
or  of  £200,  the  balance  due  the  testator  from  his 

*  Toucht.  433. 

t  Selwood  V.  Mildmay,  3  Ves.  30G ;  1  Bro.  C.  C.  4T7. 
t  Ellis  V.  Walker,  Amb.  310  ;  Kirby  v.  Potter,  4  Ves.  748  ;   Tifft  v.  Por- 
ter,  8  N.  Y.  5ia 
§  1  Atk.  508. 


96  CTTKIOSITIES    OF    WILLS. 

partner  on  the  last  settlement  between  them  ;*  but 
a  legacy  of  "£400  to  be  paid  to  A,"  in  cash,  is  a 
general  legacy .f 

Stock  or  government  securities,  or  shares  in  pub- 
lic companies,  may  be  specifically  bequeathed,  where, 
to  use  the  expression  often  applied,  there  is  a  clear 
reference  to  the  "  corpus  "  of  the  fund.  Thus,  the 
word  "  my,"  preceding  the  word  stock  or  annuities, 
has  been  several  times  adjudged  sufficient  to  render 
the  legacy  specific ;  as  where  the  bequest  is  of  "  my 
capital  stock  of  £1,000  in  the  India  Company's 
stock."  t  So  a  bequest  of  all  the  testator's  right, 
interest,  and  property  in  thirty  shares  of  the  Bank 
of  the  United  States  of  America  is  a  specific  legacy. § 

The  distinction  between  these  two  sorts  of  lega- 
cies is  of  the  greatest  importance ;  for,  in  the  settle- 
ment of  an  estate  by  executors  or  administrators, 
articles  not  specifically  bequeathed  are  first  to  be 
sold  to  pay  debts  and  other  legacies ;  and,  if  there 
be  a  deficiency  to  pay  debts,  the  general  or  pecuniaiy 
legatees  have  first  to  abate  ratably,  or  contribute 
in  proportion  to  the  value  of  their  individual  lega- 
cies. II  The  principle  on  which  this  is  done  is,  the 
presumed  intention  of  the  testator  to  give  a  prefer- 
ence to  those  legatees,  by  severing  particular  j^arts 
of  his  personal  estate  from  the  rest.  But  another 
distinction  between  them  is,  that,  if  the  particular 
thing  bequeathed  happens,  during  the  lifetime  of 
the  testator,  to  become  extinguished,  or  in  some 

*  3  Bro.  C.  G.  416.  +  Barton  v.  Cooke,  5  Ves.  4G1. 

t  Richards  v.  Richards,  9  Price,  226.   §  Walton  v.  Walton,  7  Johns.  258. 
II  2  Ves.  Sen.  561. 


LEGACIES.  97 

way  disposed  of  by  him,  which,  iu  law,  is  called  an 
ademption^  the  legacy  fails,  which  cannot  be  the 
case  with  a  general  legacy ;  so  that,  though  specific 
legacies  have,  in  some  respects,  the  advantage  of 
those  that  are  general,  yet,  in  other  respects,  they 
are  distinguished  from  them  to  their  disadvantage.* 

The  bequest  of  all  a  man's  personal  estate  gener- 
ally is  not  specific ;  the  very  terms  of  such  a  dispo- 
sition demonstrate  its  generality .f  But  if  a  man, 
having  personal  property  at  A  and  elsewhere,  be- 
queath all  his  personal  estate  at  A  to  a  particular 
person,  the  legacy  is  specific;  and,  if  there  is  a 
deficiency  of  assets  to  pay  other  legacies,  such  a 
legatee  shall  not  be  obliged  to  abate  with  the  other 
legatees.  %  So,  where  the  testator  bequeaths  the 
residue  of  all  his  personal  estate  in  the  Inland  of 
Jamaica,  this  is  a  specific  legacy.  § 

It  has  been  held  in  Pennsylvania  that  a  pecuniary 
legacy  may  be  exempt  from  abatement,  as  in  the 
case  of  a  wife  or  child  destitute  of  other  provision, 
c*  where  a  legacy  is  given  in  lieu  of  dower.  H 

Section  2. — Legacies  Vested  ok  Contingent. 

A  legacy  is  said  to  be  vested  when  the  right  to  it, 
either  in  the  present  or  in  the  future,  is  absolutely 
given  to  a  person,  and  does  not  depend  upon  the 
happening  of  some  event.  It  is  contingent,  if  the 
payment  of  it  is  dependent  upon  the  happening  of 

*  Wms.  Exrs.  994.  t  Saytr  v.  Sayer,  2  Vern.  688. 

1 1  Koper,  215.  §  5  Ves.  150. 

II  Duncan  v.  Alt,  3  Pcnn.  383. 

C.  OP  W.-«t 


98  CUJSIOSITIES    OF   WILLS. 

some  event ;  as,  if  a  person  shall  marr)^,  or  attain  a 
certain  age.  The  cases  establish  the  principle  that 
contingent  or  executory  interests,  though  they  do 
not  vest  in  jDossession,  may  vest  in  right,  so  as  to  be 
transmissible  to  the  executors  or  the  administrators 
of  the  party  dying  before  the  contingency  on  which 
they  depend  takes  effect ;  but  where  that  contin- 
gency is  the  endurance  of  life  of  the  party  till  a 
particular  period,  the  interest  will  obviously  be  al- 
together extinguished  by  his  death  before  that  pe- 
riod.* 

The  general  principle  as  to  the  lapse  of  legacies 
by  the  death  of  the  legatee  may  be  stated  to  be, 
that  if  the  legatee  die  before  the  testator's  decease, 
or  before  any  other  condition  precedent  to  the  vest- 
ing of  the  legacy  is  performed,  the  legacy  lapses, 
and  is  not  payable  to  the  executors  or  the  adminis- 
trators of  the  legatee,  f  But  this  general  rule  may 
be  controlled  by  the  manifest  intention  of- the  test- 
ator appearing  upon  the  face  of  the  will,  that  the 
legacy  shall  not  lapse,  and  by  his  distinctly  provid- 
ing a  substitute  for  the  legatee  dying  in  his  life- 
time. 

The  authorities  appear  to  have  settled  that  a 
testator  may,  if  he  thinks  fit,  prevent  a  legacy  from 
lapsing ;  though,  in  order  to  effect  this  object,  he 
must  declare,  either  expressly  or  in  terms  from 
which  his  intention  can  with  sufficient  clearness  be 
collected,  what  person  or  j)ersons  he  intends  to  sub- 
stitute for  the  legatee  dying  in  his  lifetime. 

In  ascertaining  the  intention  of  the  testator,  in 

*  Wms.  Exrs.  759.  t  Mem.  1035. 


ATTORNEY  AT  LAW! 

LEGACLESAN  F«ANCI8CO,  CAU      ^^ 

this  respect,  the  courts  of  equity  have  established 
two  positive  rules  of  construction:  1.  That  a  be- 
quest to  a  person  payable^  or  to  he  paid,  at  or  when 
lie  shall  attain  twenty-one  years  of  age,  or  at  the 
end  of  any  other  certain  determinate  time,  confers 
on  him  a  vested  interest  immediately  on  the  testa- 
tor's death,  as  debitum  in  2)rcesenti  solvendum  in 
fiituro,  and  transmissible  to  his  executors  or  ad- 
ministrators ;  for  the  words  payable,  or  to  be  paid, 
are  supposed  to  disannex  the  time  from  the  gift  of 
the  legacy,  so  as  to  leave  the  gift  immediate,  in  the 
same  manner,  in  respect  to  its  vesting,  as  if  the  be- 
quest stood  singly,  and  contained  no  mention  of 
time.  2.  That  if  the  words  payable,  or  to  be  paid, 
are  omitted,  and  the  legacies  are  given  at  twenty- 
one,  or  if ,  when,  in  case,  or  provided,  the  legatees 
attain  twenty-one,  or  any  other  future  definite  time, 
and  make  the  legatee's  right  to  depend  on  his  being 
alive  at  the  time  fixed  for  its  payment,  consequent- 
ly, if  the  legatee  happens  to  die  before  that  jDcriod 
arrives,  his  personal  representatives  will  not  be  en- 
titled to  the  legacy.* 

The  application  of  this  rule  was  well  illustrated 
in  the  case  of  Patterson  v.  Ellis,t  and  the  doctrine 
discussed  and  maintained  in  an  opinion  by  Chief 
Justice  Savage,  in  the  Court  of  Errors,  in  New 
York.  It  was  there  held,  that  where  the  gift  of  a 
legacy  is  absolute,  and  the  time  of  payment  only 
postponed,  as  where  the  sum  of  $1,000  is  given  to 
A,  to  be  paid  when  he  shall  attain  the  age  of  twen- 

*  Bacon's  Kb.  Leg.  (E) ;  2  Vent.  342 ;  Moore  v.  Sniith,  9  Watts,  403. 
1 11  Wend.  259. 


100  CURIOSITIES    OF   WILLS, 

ty-one,  the  time  not  being  of  the  substance  of  the 
gift  postpones  the  payment,  but  not  the  vesting  of 
the  legacy;  and  if  the  legatee  die  before  the  j^e- 
riod  specified,  his  representatives  are  entitled  to  the 
money.  But  where  the  legacy  is  given  lohen  the 
legatee  shall  attain  the  age  of  twenty-one,  or  j^:?;'©- 
vided  he  attains  that  age,  time  is  of  the  substance 
of  the  gift,  and  the  legacy  does  not  vest  until  the 
contingency  happens. 

But  even  where  the  legacy  is  given  when  the 
legatee  attains  the  age  of  twenty-one,  if  the  de- 
visor directs  the  interest  of  the  legacy  to  be  applied, 
in  the  meantime,  for  the  benefit  of  the  legatee, 
there  being  an  absolute  gift  of  the  interest,  the  prin- 
cipal will  be  deemed  to  have  vested.*  The  giving 
of  interest  before  the  payment  has  been  considered 
as  evidence  of  an  intention  to  vest  the  legacy. 
Hence,  when  a  portion  was  devised  to  a  child  with 
interest,  but  not  to  be  paid  or  payable  until  the 
child  should  attain  twenty-one  years,  or  be  married, 
and  the  child  died  under  twenty-one,  and  unmar- 
ried, it  was  decreed  that  the  portion  should  go  to 
the  administrator  of  the  child.f 

The  rule  with  respect  to  the  vesting  of  legacies 
payable  out  of  real  estate  is  somewhat  different.  It 
is  this  :  Where  the  gift  is  immediate,  but  payment 

*  2  Vern.  673 ;  Van  Wyck  v.  Bloodgood,  1  Bradf.  134. 

t  CoUins  V.  Metcalfe,  1  Vern.  432.  To  avoid  the  lapse  of  a  legacy  by 
the  death  of  the  legatee  during  the  lifetime  of  the  testator,  the  follow- 
ing states  have  provided  against  it,  if  any  issue  of  the  legatee  he  living 
at  the  death  of  the  testator  :  Pennsylvania,  South  Carolina,  Virginia, 
Maryland,  Massachusetts,  Connecticut,  Vermont,  New  Jersey,  Missis- 
sippi, Maine,  Rhode  Island.     (4  Kent,  542.) 


LEGACIES.  101 

is  postponed  until  the  legatee  attains  the  age  of 
twenty-one  years,  oi*  marries,  there  it  is  contingent, 
and  will  fail  if  the  legatee  dies  before  the  time 
of  payment  arrives ;  but  where  the  payment  is 
postponed  in  regard  to  the  convenience  of  the  per- 
son, and  the  circumstances  of  the  estate  charged 
with  the  legacy — and  not  on  account  of  the  age, 
condition,  or  circumstances  of  the  legatee — in  such 
a  case  it  will  be  vested,  and  must  be  paid,  although 
the  legatee  should  die  before  the  time  of  payment.* 

The  rule  in  question  is  always  liable  to  the  opera- 
tion of  the  more  general  and  powerful  rule,  namely, 
that  the  intention  of  the  testator,  to  be  gathered 
from  the  words  of  the  will,  must  prevail. 

As  an  illustration  of  the  rule  in  regard  to  the 
vesting  of  legacies  on  personal  estate,  the  following 
is  in  point :  A  testator  bequeathed  to  his  daughters 
the  sum  of  £3,000,  five  per  cent,  navy  annuities,  and 
all  the  dividends  and  proceeds  arising  therefrom,  to 
be  equally  divided  between  them,  and  all  his  estate 
at  S,  to  be  equally  divided  between  them  when  they 
should  arrive  at  twenty-four  years  of  age.  One  of  his 
daughters  died  before  she  attained  the  age  of  twenty- 
four  years.  The  court  was  of  opinion  that,  accord- 
ing to  the  true  rule  of  construction,  the  word  when 
could  not  be  otherwise  considered  than  as  denoting 
the  period  of  payment,  and  must  not  be  deemed  as 
a  condition  precedent  upon  which  the  legacy  was  to 
vest,  but  merely  postponing  the  payment  of  this 
£3,000,  with  the  dividends  thereon,  till  twenty-f our.t 

*  1  Roper,  216 ;  1  Paige,  33 ;  Harris  v.  Fly,  7  Paige,  429 ;  Sweet  v.  Chase 
2  N.  Y.  73. 

t  May  V.  Wood,  3  Bro.  471. 


102  CURIOSITIES   OF   WILLS. 

A  legacy  of  £30  was  given  to  an  infant  to  bind 
him  an  apprentice.  The  infant  died  before  he  at- 
tained a  proper  age  to  be  bound  an  apprentice.  It 
was  decreed  that  this  legacy  was  vested,  and  the 
infant  being  seventeen  years  old,,  and  having  made 
a  will,  and  named  an  executor,  it  was  allowed  to  be 
a  good  disposition  of  the  £30.* 

As  to  charging  legacies  on  real  estate,  and  observ- 
ing the  rule  above  laid  down,  the  following  is  in 
point : 

T  S,  by  will,  gave  his  daughter  £1,000,  to  be 
paid  by  his  executor  at  her  age  of  twenty-one,  or 
marriage,  which  should  first  hapj^en,  willing  the 
same  to  be  raised  out  of  the  rents  and  profits  of  the 
lands ;  and  further  willed,  that  in  case  his  son  should 
die  before  the  age  of  twenty-one,  or  without  heirs 
of  his  body  lawfully  begotten,  then  from  and  after 
the  death  of  his  son,  he  gave  all  his  said  lands,  etc., 
to  the  defendant,  he  making  up  his  daughter's  por- 
tion to  £2,000 ;  and  the  daughter  died  soon  after 
the  testator's  death,  an  infant,  unmarried,  upon 
which  her  mother  took  out  letters  of  administration 
and  claimed  the  £2,000 ;  it  was  decreed  that  she 
was  not  entitled  to  any  part  of  it,  for  it  appears 
that  the  intention  of  the  testator  was  that  it  should 
be  for  a  portion,  and  it  is  expressly  called  a  portion 
in  the  will ;  it  is  no  personal  legacy,  but  money  to 
be  raised  out  of  the  rents  and  profits  of  lands,  and 
the  payment  is  expressly  to  be  at  twenty-one  years, 
or  marriage.f 

*  Barlow  V.  Grant,  1  Vern.  255. 

t  Duke  of  Chandos  v.  Talbot,  2  P.  Wms.  G12  ;   Smith  v.  Smith,  2 
Vern.  92. 


LEGACIES.  103 


Section  3. — CoxDiTioifAL  Legacies. 

By  the  bestowal  of  legacies  a  rare  opportunity 
is  offered  to  testators  either  to  gratify  some  peculiar 
desire,  or  to  restrain  or  control  some  one  who  is  the 
beneficiary.  It  is  on  the  legal  principle  of  quid 
pro  qico,  a  consideration  for  a  consideration.  Ac- 
cordingly, we  find  that  testators,  in  bestowing  their 
bounty  by  way  of  legacies,  avail  themselves  of 
the  opportunity  to  effect  various  objects — some  to 
regulate  and  restrain  a  wayward,  errant  child,  some 
to  curb  the  eager  readiness  of  a  widow  to  find  a 
new  partner,  some  to  check  a  child  rashly  rushing 
into  wedlock,  and  some  to  gratify  a  whim  or  a 
prejudice. 

The  law  allows  conditions  to  be  annexed  to  a 
legacy,  provided  they  are  not  against  public  policy 
or  good  morals. 

A  conditional  legacy  is  defined  to  be  a  bequest 
whose  existence  depends  upon  the  happening  or  not 
happening  of  some  uncertain  event,  by  which  it  is 
either  to  take  place  or  be  defeated.*  No  precise 
form  of  words  is  necessaiy  to  create  conditions  in 
wiUs ;  wherever  it  clearly  appears  that  it  was  the 
testator's  intent  to  make  a  condition,  that  intent 
shall  be  carried  into  effect. 

Conditions  are  subject  to  the  well-known  division, 
into  conditions  precedent  and  conditions  subse- 
quent. When  a  condition  is  of  the  former  sort, 
the  legatee  has  no  vested  interest  till  the  condition 

•  1  Roper,  (545. 


104  CURIOSITIES    OF   WILLS. 

is  pei-f ormed ;  when  it  is  of  the  latter,  the  interest 
of  the  legatee  vests,  in  the  first  instance,  subject  to 
be  divested  by  the  non-performance  or  breach  of 
the  condition. 

Whether  a  condition  be  precedent  or  subsequent, 
that  is,  whether  it  must  be  performed  before  the 
legatee  can  be  entitled  to  an  absolute  interest  in  the 
bequest,  or  not  till  after,  of  course  dejDends  upon 
the  words  and  intention  of  the  testator.  But  a  testa- 
tor, in  making  a  bequest,  may  use  words  of  condition, 
which,  however,  shall  not  be  construed  as  such,  if  it 
clearly  appear  that  they  do  not  involve  the  inoHve 
and  reason  of  the  bequest.*  Any  consideration  ex- 
acted from  the  beneficiary,  or  any  duty  imposed  on 
him,  unless  it  is  spread  over  a  very  unusual  period 
of  time,  is  a  condition  precedent.  A  condition  that 
the  beneficiary  shall  cease  to  resort  to  public  houses 
is  a  condition  precedent,  and  is  not  void  for  uncer- 
tainty.f 

In  the  case  of  Tattersall  v.  Howell,  4:  a  legacy  was 
given,  provided  the  legatee  changed  his  course  of 
life,  and  gave  up  all  low  company,  and  frequenting 
public  houses.  And  Sir  William  Grant  held  that 
this  was  a  condition  such  as  the  court  could  carry 
into  effect,  and  directed  an  inquiry  whether  the  leg- 
atee had  discontinued  to  frequent  public  houses, 
keeping  low  company,  etc. 

Had  this  been  a  devise  of  land,  it  would  have  been 
a  void  condition,  as  will  appear  in  the  next  chapter. § 

In  Dunstan  v.  Dunstan,  the  executors  were  re- 

*  Bacon's  Ab.  Leg.  (F.)  1 2  Meriv.  26. 

t  37  Miss.  114.  S  Moore  v.  Moore,  47  Barb.  257. 


LEGACIES.  105 


quired  by  the  mil  to  pay  to  the  legatee  annually  i 
and  also  one-fifth  of  the  testator's  estate,  in  case  the 
legatee  should  refrain  from  yicious  habits,  and  con- 
duct himself  with  sobriety  and  good  morals.  About 
two  years  after  the  testator's  death,  the  legatee  filed 
his  bill  against  the  executors,  insisting  that  he  had 
reformed,  and  claiming  the  payment  of  his  share  of 
the  estate.  The  defendants  had  refused  to  pay  over 
to  the  claimant  his  one-fifth  of  the  estate,  not  being 
satisfied  of  his  complete  reformation.  The  provi- 
sion of  the  will  was  supported,  and  as  the  complete 
reformation  of  the  legatee  was  not  distinctly  proved, 
and  a  sufficient  time  had  not  elapsed  between  the 
death  of  the  testator  and  the  filing  of  the  bill  to 
enable  the  executors  to  form  a  sound  opinion  as  to 
the  permanency  of  the  legatee's  good  conduct,  it 
was  held  that  the  executors  were  rischt  in  refusinsr 
to  place  the  whole  property  in  his  hands  at  that 
time,  and  it  was  referred  to  a  Master  to  ascertain 
and  I'eport  whether  there  had  been  such  a  perma- 
nent reformation  in  his  character  and  habits  as  to 
entitle  him  to  receive  the  whole  amount  bequeathed 
to  him  at  that  time. 

If  the  condition  is  at  all  capable  of  being  con- 
strued as  subsequent,  it  will  be  deemed  to  be  such. 
Thus,  in  Page  v.  Hayward,*  lands  were  devised  to 
A  and  B  in  case  they  married  a  person  named  S. 
They  married  each  a  person  of  a  different  name, 
yet  they  were  held  to  take  vested  interests,  the 
condition  being  subsequent,  and  being  capable  of 
being  performed,  as  their  husbands  might  die,  and 

♦2  Salk.  570. 


106  CITBIOSITIES    OF   AVTLLS. 

they  might  then  marry  persons  of  the  coveted  name. 

A  testator  declared  that  if  either  Jane  or  Mary 
married  into  the  families  of  Prudence  or  Resigna- 
tion, and  had  a  son,  then  he  gave  all  his  estate  to 
such  son ;  but  if  they  did  not  marry,  then  the  estate 
was  to  go  to  A.  Jane  and  Mary  married,  but  not 
into  the  families  mentioned,  and  A  claimed  the  es- 
tate ;  but  it  was  held  that  during  the  lives  of  Jane 
and  Mary  the  claim  was  premature,  for  one  of  them 
might  afterwards  satisfy  the  condition.* 

The  race  as  well  as  the  religious  antipathy  of  a 
testator  sometimes  crops  out  in  his  will.f  The  tes- 
tator in  the  following  instance  must  have  had  as 
much  dislike  to  Scotchmen  as  the  celebrated  Dr. 
Johnson.  He  devised  his  real  and  personal  estate 
to  trustees,  out  of  which  to  pay  an  annuity  to  his 
wife  for  life,  and  out  of  the  residue  to  pay  suffi- 
cient for  the  maintenance,  education,  and  support 
of  his  only  daughter  until  she  should  attain  the  age 
of  twenty-one  years,  or  marry,  and  then  in  fee, 
with  a  proviso  that  if  either  his  wife  or  daughter 
should  marry  a  Scotchman,  then  his  wife  or  daugh- 
ter so  marrying  should  forfeit  all  benefit  under  his 
will,  and  the  estates  given  should  descend  to  such 
jjerson  or  persons  as  would  be  entitled  under  his 

*  BandaU  v.  Payne,  1  Bro.  C.  0.  55. 

t  A  legacy  was  sometimes  given  on  condition  that  the  legatee  should 
not  marry  a  Roman  Catholic.  As  late  as  April,  1869,  the  Hon.  Araminta 
Monck  Ridley,  in  London,  left  a  clause  in  her  will  that  "  if  any  or  either 
of  my  said  children,  either  in  my  lifetime,  or  at  any  time  after  my  de- 
cease, shall  marry  a  Roman  Catholic,  or  shall  join  or  enter  any  Ritualistic 
brotherhood  or  sisterhood,  then  in  any  of  the  said  cases,  the  several  pro- 
visions, whether  original,  substitutive,  or  accruing,  hereby  made  for  the 
benefit  of  such  child  or  children,  shall  cease  and  determine,  and  become 
absolutely  void." 


LEGACIES.  107 

will  in  the  same  manuer  as  if  his  wife  or  daughter 
were  dead.  It  was  held  that  such  partial  restraint 
of  marriage  was  legal,  and  that,  the  daughter  hav- 
ing while  under  age  married  a  Scotchm.an,  and  died 
leaving  a  son,  the  son  could  not  inherit.* 

The  most  interesting  inquiry  in  connection  with 
conditional  legacies,  is,  as  to  how  far  conditions  an- 
nexed to  legacies  which  restrain  marriage  are  to  be 
performed,  and  in  what  case  the  neglect  or  non- 
performance of  them  will  forfeit  the  legacy.  The 
Roman  civil  law  made  absolutely  void  all  such  con- 
ditions in  restraint  of  marriage,  as  against  the  pol- 
icy of  the  State ;  but  our  law  has  not  evinced  the 
same  impatience  of  nuptial  restrictions,  for  a  con- 
dition inhibiting  marriage  untU  majority,  or  any 
other  reasonable  age,  or  requiring  consent,  or  re- 
straining marriage  with  any  2^<^^ti<^^lO''>'  individual, 
and  in  the  case  of  a  widow,  even  a  general  restraint, 
is  lawful.f 

Thus,  if  an  annuity  be  bequeathed  by  a  man  to 
his  wife  for  so  many  years,  if  she  shall  remain  so 
long  a  widow,  it  is  a  good  conditional  bequest,  be- 
cause of  the  particular  interest  every  husband  has 
in  his  wife  remaining  a  widow,  for  thereby  she  mil 
the  better  take  care  of  the  concerns  of  his  family.  X 
But  if  a  stranger  gives  a  legacy  upon  such  condi- 
tion, it  is  not  a  good  condition,  for  there  is  no  more 

*Pemn  v.  Lyon,  9  East.  170. 

t  Scott  V.  Tyler,  2  Bro.  0.  0.  48S.  This  is  a  leading  case,  and  the  argu- 
ments of  the  leading  counsel  engaged  contain  muph  of  the  law  on  the 
subject.    SeeAmb.  209. 

X  Godolp.  Leg.  45. 


108  CimiOSITIES   OF   WILLS. 

reason  restraining  a  widow  from  marrying  than  a 
maid.* 

In  the  American  Stat;5s,  Ave  permit  such  a  condi- 
tion to  be  annexed  to  a  legacy,  as  well  as  in  Eng- 
land.f 

A  restraint  of  this  sort,  annexed  as  a  condition, 
occurred  in  a  case  in  Pennsylvania,  t  in  connection 
with  the  will  of  William  Geigley,  and,  as  a  singular 
instance  of  a  testator's  forethought  and  exactness, 
together  with  an  unusual  effusion  of  sentimental 
argument,  very  seldom  met  with  in  the  sober,  well 
considered  decisions  of  courts,  it  will  be  interest- 
ing to  refer  to  it. 

The  testator  provided  as  follows :  "I  will  and 
bequeath  to  my  loving  wife,  Susan  Geigley,  all  my 
real  and  personal  estate  that  I  am  possessed  of, 
(with  a  few  exceptions,  that  I  will  afterwards  be- 
queath to  my  brother  George)  provided  my  wife 
Susan  remains  a  widow  during  her  life.  But  in 
ease  she  should  marry  again,  my  will  is,  she  then 
shall  leave  the  premises,  and  receive  all  the  money 
and  property  she  had  of  her  own,  or  that  I  received 

of  hers It  is  my  will  and  desire,  that  if  ray 

wife  remain  a  widow  during  her  life  on  the  j^rem- 
ises,  that  after  her  death  all  the  money  or  property 
that  I  got  or  had  of  my  wife's  shall  be  paid  to  her 
friends,  whomsoever  she  wills  it  to  ;  and  all  prop- 
erty belonging  to  me  as  my  own  at  my  death  (not 
including  my  wife's  part)  I  will  and  bequeath  to 
my  father  and  mother,  if  living.     But  if  they  are 

•  Godolp.  46.  1 2  Eedfleld,  295. 

t  Commonwealth  v.  Staufifer,  10  Peun.  350, 


LEGACIES.  lOO 

both  deceased,  my  will  is  that  my  brother,  George 
Gcigley,  and  ray  sister,  Catharine  Geigley,  shall 
have  the  whole  of  that  share  or  part  that  was  my 
own,  to  them,  their  heirs  and  assigns,  forever." 

This  condition  was  held  to  be  good,  and,  the 
widow  having  married,  the  mother  became  entitled 
to  the  proceeds  of  the  real  estate. 

The  language  of  the  judge  before  whom  the  case 
was  at  first  heard  is  deserving  of  a  place  in  legal 
literature,  as  something  rare  in  these  matter-of-fact, 
prosaic  days.  lie  thought  it  shocking  to  his  sense 
of  personal  liberty  that  any  such  restraint  should 
be  valid,  and  concludes  his  decision  with  the  fol- 
lowing beautiful  effusion  : 

"The  princii)lo  of  reproduction  stands  next  in 
importance  to  its  elder-born  correlative,  self-pre- 
servation, and  is  equally  a  fundamental  law  of  ex- 
istence. It  is  the  blessing  which  tempered  with 
mercy  the  justice  of  expulsion  from  Paradise.  It 
was  impressed  upon  the  human  creation  by  a  benefi- 
cent Providence  to  multiply  the  images  of  himself, 
and  thus  to  promote  His  own  glory  and  the  happi- 
ness of  His  creatures.  Not  man  alone,  but  the  whole 
animal  and  vegetable  kingdom  are  under  an  im- 
perious necessity  to  obey  its  mandates.  From  the 
lord  of  the  forest  to  the  monster  of  the  deep — ^from 
the  subtlety  of  the  serj^ent  to  the  innocence  of  the 
dove — from  the  celastic  embrace  of  the  mountain 
Kalmia  to  the  descending  fructification  of  the  lily 
of  the  plain,  all  nature  bows  submissively  to  this 
primeval  law.  Even  the  flowers  which  perfume  the 
air  with  their  fragrance,  and  decorate  the  forests 
C.  OP  w— lO. 


110  CTTEIOSITIES   OF   WILLS. 

and  fields  with  their  hues,  are  but  curtains  to  the 
nuptial  bed.  The  jDrinciples  of  morality — the  policy 
of  the  nation — ^the  doctrines  of  the  common  law — 
the  law  of  nature  and  the  law  of  God — unite  in 
condemning  as  void  the  condition  attempted  to  be 
imposed  by  this  testator  upon  his  widow." 

It  may  be  considered  an  unfair  partiality  in  our 
law  that  wives  are  not  allowed  the  same  privilege 
to  prohibit  their  husbands  from  marrying  again ; 
for  it  has  just  been  lately  decided  in  England,  in 
the  case  of  Allen  v.  Jackson,*  that  while  a  restraint 
of  a  widow  is  a  good  condition  and  valid  as  such,  a 
similar  restraint  of  a  widower  in  regard  to  his  mar- 
riage is  invalid,  and  of  no  effect.  It  would  seem  at 
first  blush  that  the  same  rule  should  govern  in  each 
case;  but  Vice-Chancellor  Wood,  in  Newton  v. 
Marsden,t  suggested  a  reason  which  he  thinks  jus- 
tifies the  distinction,  namely,  that  a  condition  re- 
straining the  marriage  of  a  widow  is  valid,  because 
it  is  not  an  arbitrary  prohibition  of  marriage,  but 
the  condition  of  a  gift,  made  to  the  widow  because 
she  was  a  widow,  and  because  the  circumstances 
would  be  entirely  changed  if  she  entered  into  a  new 
relation.^ 

*L.  R.  19Eq.  631. 

t  2  J.  and  H.  356. 

t  In  the  foUowing  instance,  a  testator  is  not  content  only  to  have  his 
wife  remain  a  widow — he  must  have  her  display  the  appropriate  insignia 
of  her  situation.  Mr.  James  Bobbins,  whose  will  was  proved  in  Octo- 
ber, 1861,  in  London,  declares:  "  That,  in  the  event  of  my  dear  wife  not 
complying  with  my  request,  to  wear  a  widow's  cap  after  my  decease,  and 
in  the  event  of  her  marrying  again,  that  then,  and  in  both  cashes,  the 
annuity  which  shall  be  payable  to  her  out  of  my  estate  shall  be  £20  por 
annum  and  not  £30."  As  there  was  no  stipulation  as  to  the  time  the 
widow's  cap  was  to  bo  worn,  probably  Mrs.  Bobbins  found  it  easy  to 


LEGACIES.  Ill 

While  the  law  sanctions,  in  this  case,  the  restraint 
of  a  second  marriage,  it  does  not  tolerate  a  general 
restraint  of  a  first  marriage ;  as  Swinburne  says  :* 
"  A  prohibition  of  the  first  marriage  is  much  more 
odious  in  law  than  the  second."  The  utmost  privi- 
lege it  has  given  in  this  respect  is  to  permit  a 
restraint  as  to  time,  place,  or  person,  as  not  to 
marry  before  twenty-one,  not  to  marry  at  York,  not 
to  marry  a  papist.  Still,  the  law  is  not  indulgent  of 
such  conditions,  and  in  some  cases  will  not  permit 
a  forfeiture  if  the  condition  is  not  observed.  Thus, 
if  a  legacy  be  given  on  condition  of  asking  consent 
to  marriage,  if  the  person  marries  without  such  con- 
sent, he  does  not  lose  the  legacy.  Such  a  condition 
is  said  to  be  in  terrorem  only — ^something  like  an 
idle  threat,  to  prevent  persons  exercising  an  impru- 
dent choice. 

In  Bellasis  v.  Ermine,t  a  suit  was  brought  for 
£8,000,  given  to  the  plaintiff's  wife.  The  defend- 
ant pleaded  that  it  was  given  her  provided  she 
married  with  the  consent  of  A,  and,  if  not,  that  she 
should  have  but  £100  per  annum;  and  that  she 
married  without  the  consent  of  A.  It  was  ordered 
that  the  plea  be  overruled.  And  the  court  all  de- 
clared that  this  proviso  was  but  in  terrorem,  to 
make  the  person  careful,  and  that  it  would  not  de- 

comply  with  the  letter  of  the  request  in  her  husband's  will,  and  yet 
indulge  her  own  taste  in  the  matter.  In  contradistinction  to  this  was 
the  will  of  Mr.  Edward  Concanen,  proved  in  1868.  He  says  :  "  And  I  do 
hereby  bind  my  said  wife  that  she  do  not,  after  my  decease,  ofltend  artis- 
tic taste,  or  blazon  the  sacred  feelings  of  her  sweet  and  gentle  nature,  by 
the  exhibition  of  a  widow's  cap." 

»  Wills,  Pt.  4,  Sec.  12. 

tlOh.  Ca.22. 


112  CURIOSITIES   OP   WILLS. 

feat  the  portion.  But  it  was  said  that  if  the  party 
who  gave  the  portion  had  limited  it  to  another,  in 
the  case  of  her  marriage  without  the  consent  of  A, 
there  it  would  have  been  otherwise.  We,  in  this 
country,  follow  the  same  law.*  So  long,  therefore, 
as  the  legacy  does  not  go  to  another  named  in  the 
will,  in  case  of  a  breach  of  the  condition,  the  legatee 
will  be  entitled,  notwithstanding  a  marriage  with- 
out consent.  The  reason  of  this  is  said  to  be,  that 
the  courts  cannot  relieve  against  the  forfeiture 
without  doing  an  injury  to  the  jjerson  to  whom  it 
is  limited  over.f  Thus,  A  bequeathed  £3,000  to 
his  daughter,  the  plaintiff  Garret's  wife,  at  twenty- 
one  or  marriage,  and  recommended  her  to  the  care 
of  S,  provided  that,  if  she  married  without  the  con- 
sent of  S,  her  legacy  of  £3,000  was  to  cease,  and 
she  was  to  have  but  £500,  and  made  the  defendant, 
his  son,  executor.  The  plaintiff  married  the  daugh- 
ter without  the  consent  of  S,  yet  the  court  decreed 
her  the  whole  £3,000,  with  interest  fi-om  the  mar- 
riage, and  principally  because  it  was  not  expressly 
devised  over.f 

Howevei",  courts  do  not  permit  this  doctrine  of  in 
terrorem  to  apply,  in  case  the  marriage  is  to  be  with 
consent  during  minority.  In  such  a  case  the  con- 
dition is  enforced,  as  it  is  deemed  a  safe  and  proper 
one  for  the  protection  of  youth. 

The  reason  of  the  application  of  the  doctrine  in 
terrorem^  is,  that  if  a  consent  be  withheld  after  a 
person  has  attained  majority,  it  may  be  for  a  long 

*  Parsons  v.  Winslow,  6  Mass.  169.  t  2  Ves.  265. 

X  Garret  v.  Pritty,  2  Vern.  293. 


LEGACIES.  113 

period,  either  from  caprice,  willfulness,  or  some 
other  cause,  and  would  practically  restrain  marriage, 
which  is  what  the  law  will  not  permit.* 

If  a  jjortion  be  given  on  condition  that  the  daugh- 
ter should  never  marry,  such  a  condition  should  be 
rejected  as  repugnant  to  the  original  institution  of 
mankind.f 

So,  if  a  condition  be  illegal,  or  contrary  to  the 
policy  of  the  law,  as,  if  a  legacy  be  given  to  a 
woman  if  she  does  not  cohabit  with  her  husband 
and  lives  apart,  such  a  condition  is  void,  and  the 
legatee  is  entitled  absolutely.^ 

♦The  case  of  Bayeaux  v.  Bayeaux,  8  Paige,  333,  is  a  curious  example  of 
an  attempt  made  by  a  testator  to^egulate  and  control  the  choice  of  his 
children  in  marriage. 

The  testator  died  at  the  city  of  Troy,  in  March,  1839,  leaving  a  -widow 
and  three  infant  children.  By  his  will,  made  a  few  months  before  his 
death,  and  evidently  without  the  aid  or  advice  of  counsel,  he  placed 
the  following  condition  on  a  legacy  to  his  children  : 

"  I  charge  upon  my  cliildren,  in  every  possible  case,  and  under  all  cir- 
cumstances, never  to  make  a  matrimonial  engagement,  or  bind  themselves 
to  any  individuals  by  promise  of  marriage,  without  full  parental  appro- 
bation and  consent  as  it  regards  the  favored  individual.  And  while  I  con- 
sider it  unjust  as  well  as  unwise  for  a  parent  to  coerce,  or  to  attempt 
forcibly  to  induce  a  child  to  marry  an  object  it  cannot  love,  so  do  I  also 
deem  it  without  any  possible  excuse  on  the  part  of  the  child  to  marry 
without  the  full  consent  of  the  parents.  And  in  the  event  of  disobe- 
dience on  the  part  of  my  child,  in  this  respect,  my  wish,  desire,  and  in- 
tention is  to  cut  that  child  off  from  any  participation  of  the  benefits 
arising  from  any  property  I  may  leave  at  my  decease,  of  every  kind  and 
description  whatever." 

The  provisions  of  the  will  were  in  many  respects  so  vague  and  indefi- 
nite, that  Chancellor  Walworth  remarked  :  "  It  is  very  evident  that  this 
will  was  drawn  by  the  decedent  himself,  or  by  some  other  person  equally 
ignorant,  not  only  of  legal  language,  but  of  legal  principles."  He  held 
that  the  children  took  the  same  shares  as  if  their  father  died  intestate. 

tLord  Comyns'  Rep.  728. 

t  Brown  v.  Peck,  1  Eden.  140. 


114  CURIOSITIES    OF   WILLS. 


Section  4. — Payment  of  Legacies. 

Attention  is  now  to  be  given  to  the  payment  of  leg- 
acies. It  is  evident  that  an  executor  cannot  safely- 
pay  a  legacy  until  he  ascertains  that  the  personal 
estate  of  the  deceased  is  sufficient  to  pay  the  debts, 
and  for  this  reason  the  law  generally  allows  the 
space  of  a  year  to  satisfy  himself  as  to  the  condition 
of  the  personal  estate.*  And  should  an  executor, 
acting  under  the  impression  that  the  condition  of 
the  assets  was  such  as  to  entitle  him  to  pay  a  legacy 
before  the  end  of  the  year,  pay  it  before,  and  if, 
afterwards,  a  deficiency  arises,  he  is  responsible  for 
the  payment  of  any  claim  or  demand  against  the 
estate.  Sometimes  the  exigencies  of  a  person  may 
require  an  earlier  j)ayment  of  a  legacy,  and  in  this 
case  an  executor  may  pay  such  legacy,  provided  he 
gets  a  bond,  with  two  good  sureties,  to  refund  in 
case  of  any  deficiency ;  this  is  the  case  by  statute 
in  New  York,t  and  in  many  other  States.  Even  if 
a  testator  desires  a  payment  of  a  legacy  before  the 
expiration  of  a  year,  an  executor  is  not  bound  to 
make  payment.^  As  regards  the  time  of  payment, 
the  law  makes  no  difference  between  general  or 
3j)ecific  legacies. 

The  next  inquiry  may  be  as  to  when  a  legacy  is 
to  be  paid,  where  a  legatee  is  to  become  entitled  at 
twenty-one,  or  at  some  other  age,  and  dies,  having  a 
vested  interest,  before  he  attains  the  specified  age. 

*10  Ves.  13.    This  was  the  time  allowed  in  the  civil  law,  2  Salk.  415. 
1 2  Rev.  Stat.  90. 
.    t  Benson  v.  Maude,  6  Madd.  15. 


LEGACIES.  115 

In  this  case,  it  is  a  rule  that  no  payment  is  to  be 
made  imtil  the  time  arrives  when  the  deceased,  if 
living,  would  become  entitled.*  But  if  interest  be 
given  during  minority,  the  representative  of  the  de- 
ceased may  claim  the  legacy  immediately.! 

A  legacy  of  £500  was  given  to  the  eldest  son  of 
A  to  be  begotten,  to  place  him  out  apprentice ;  A 
had  a  son  born  after  the  death  of  the  testator ;  and 
on  a  bill  brought  by  him  for  the  legacy,  it  was  de- 
creed to  be  paid,  though  it  was  before  the  time 
when  he  was  fit  to  be  placed  out  an  apprentice.  J 
The  following  case  brings  up  a  reminiscence  of  a 
state  of  society  that  is  now  very  unfamiliar  to  us  at 
the  i^resent  day : 

The  testator  by  his  will  emancipated  his  slave, 
and  devised  to  him  two  hundred  dollars,  "  to  assist 
him  in  buying  his  wife."  The  specification  of  the 
object  of  the  bequest  does  not  qualify  it,  nor  affect 
the  legatee's  right  to  it.  The  executors,  it  was  de- 
cided, cannot  compel  him  to  use  the  two  hundred 
dollars  in  the  matrimonial  market,  nor  delay  him 
payment  until  he  makes  a  purchase  there.  § 

A  testator  devised  as  follows:  "I  lend  to  my 
wife  the  plantation  whereon  I  now  live,  and  after 
her  decease  I  give  and  bequeath  the  said  land  to 
my  child  that  my  wife  is  now  pregnant  with,  if  a 
boy ;  and  if  it  should  be  a  girl,  I  give  the  said  land 
to  my  son  H,  upon  his  paying  to  the  said  child,  if  a 
girl,  one  hundred  pounds."     The  child  proved  to 

*2  Vern.  31.    Roden  v.  Smith,  Ami).  588. 

t  Cricket  v.  Dolby,  3  Ves.  13. 

t  Nevil  V.  Nevil,  2  Vern.  431. 

§  Joe  V.  Hwt's  Executors,  2  J.  J.  Marsh.  351. 


116  CUEIOSITIES   OP  WILLS. 

be  a  girl ;  and  it  was  held  that  the  legacy  of  one 
hundred  pounds  was  not  payable  until  the  death  of 
the  testator's  widow.* 

If  a  legacy  be  given  to  A,  with  a  bequest  over  if 
he  succeed  to  a  certain  estate,  or  upon  condition 
that  it  shall  be  void  in  that  eveut,  the  legacy  must 
be  paid  to  A,  notwithstanding.! 

If  a  legacy  be  devised  generally,  it  is  regularly 
to  carry  interest  from  the  expiration  of  the  first 
year  after  the  death  of  the  testator ;  but  if  it  be  a 
specific  legacy  upon  which  interest  can  accrue,  the 
interest  will  be  given  from  the  death  of  the  testator, 
and  it  is  immaterial  whether  the  enjoyment  of  the 
principal  is  postponed  by  the  testator  or  not.t 
Even  if  there  be  a  direction  to  pay  a  general 
legacy  as  soon  as  possible,  interest  only  begins  at 
the  end  of  a  year.§  But  if  the  legatee,  being  of  full 
age,  neglects  to  demand  it  at  that  time,  he  cannot 
have  interest  but  from  the  time  of  the  demand,  be- 
cause a  legacy  differs  from  a  debt.  || 

While  this  was  formerly  the  rule,  it  is  not  now 
in  force,  for  it  has  been  held  that,  no  matter  whether 
the  legatee  demands  or  not,  the  legacy  will  draw 
interest.    It  was  so  decided  in  a  case  in  New  Yoi'k.lT 

The  general  rule  is,  that  a  legacy  payable  at  a 
future  day  does  not  carry  interest  before  the  time 
of  payment ;  and  the  rule  applies  to  an  infant  pay- 
able at  twenty-one,  unless  in  the  case  of  an  infant 
having  a  right  to  demand  maintenance  from  the 
testator,  or  of  the  legacy  to  him  being  a  residue,  or 

*  1  Hawks  241.  §  8  Ves.  410. 

t  Fawkes  v.  Gray,  18  Ves.  131.  II  Poph.  104. 

t  Wms.  Exrs.  1221 ;  2  Bradf .  77.        U  Marsh  v.  Hague,  1  Eflw  Oh.  174. 


LEGACIES.  117 

there  are  special  circumstances  showing  clearly  an 
intention  to  give  interest.*  And  if  a  legacy  is 
given  in  lieu  of  dower,  or  is  decreed  to  be  a  satis- 
faction of  a  debt,  the  court  always  allows  interest 
from  the  death  of  the  testator.f 

A  legacy  to  a  child  whose  support  and  mainten- 
ance is  otherwise  provided  for  by  the  bounty  of  the 
testator,  like  a  legacy  to  a  more  distant  relative,  or 
to  a  stranger,  is  not  payable  and  does  not  draw  in- 
terest until  one  year  after  the  death  of  the  testator, 
where  no  time  of  payment  is  prescribed  by  the 
wiU.t 

An  annuity  bestowed  by  Avill,  without  mentioning 
any  time  of  payment,  is  considered  as  commencing 
at  the  death  of  the  testator,  and  the  first  pajonent 
as  due  at  the  expiration  of  one  year;  from  which 
latter  period  interest  may  be  claimed  in  cases  where 
it  is  allowed  at  all.§ 

The  rule  as  to  interest  being  reckoned  on  a  spe- 
cific legacy  from  the  death  of  the  testator  was 
strictly  applied  in  the  case  of  Chm-chill  v.  Speake,|| 
where  a  testator  made  a  specific  bequest  of  a  mort- 
gage for  £1,000  to  his  wife,  and  desu-ed  her  to  give 
the  simi  of  £500  to  M  C,  his  grandchild ;  "  but,  for 
the  time  and  manner  of  doing  it,  I  leave  it  freely 
to  herself,  and  as  she  shall  see  it  best  for  her "; 
and  the  wife  exercised  this  freedom  so  well  as  to 
live  twenty  years  after  the  testator,  and  never  paid 
the  £500  ;  and  the  court  decreed  payment  of  it  to 
M  C,  with  interest  from  the  testator's  death. 

♦  Ves.  10.  t  WUliamson  v.  WiUiamson,  6  Paige,  298. 

t  Wms.  ExTS.  1222.  §  5  Binney  475.  y  1  Vera.  251. 


118  CUEIOSITIES   OF   WILLS. 

The  inquiry  to  whom  legacies  arc  to  be  paid  is 
one  of  great  importance  to  the  executor,  who  must 
be  careful  to  pay  legacies  into  the  hands  of  those 
who  have  authority  to  receive  them.  It  is  a  general 
rule  that,  where  the  legatee  is  an  infant,  and  would 
be  entitled  to  receive  a  legacy  if  he  were  of  age,  the 
executor  is  not  justified  in  paying  it  either  to  the 
infant,  or  to  the  father,  or  any  other  relation  of  the 
infant,  on  his  account,  without  the  sanction  of  a 
court  of  equity.*  And  even  in  the  case  of  a  child 
who  has  attained  majority,  payment  to  the  father 
is  not  good,  unless  it  be  made  by  the  consent  of  the 
child,  or  confirmed  by  his  subsequent  ratification. 
It  may  happen  that  an  executor  has,  with  the  most 
honorable  intentions,  paid  the  legacy  to  the  father 
of  the  infant ;  nevertheless,  he  will  be  held  liable  to 
pay  it  over  again  to  the  legatee  on  his  coming  of  age. 
And  although  such  cases  have  been  attended  vnth 
many  circumstances  of  hardship  to  the  executor,  yet 
he  lias  been  held  responsible,  on  the  policy  of  obvi- 
ating a  practice  so  dangerous  to  the  interests  of 
infants,  and  so  naturally  productive  of  domestic 
discord-t 

Many  of  our  States  regulate  the  payment  of  lega- 
cies to  infants  by  statute,  as  in  New  York,  where  a 
legacy  of  $50  may  be  paid  to  the  father  of  the  lega- 
tee, to  the  use  and  for  the  benefit  of  such  minor ; 
but,  if  it  exceeds  $50,  it  must  be  paid  to  the  general 
guardian  of  the  infant,  who  will  be  required  to  file 
a  bond  to  pay  it  over  to  the  infant.J 

*  1  Johns.  Ch.  3.  t  Wms.  Exrs.  1206-7.  %  2  Rev.  St.  450. 


LEGACIES.  119 

It  was  formerly  tlie  law  that,  if  a  legacy  was  given 
to  a  married  woman,  it  should  be  paid  to  the  hus- 
band. So,  where  a  legacy  was  given  to  a  married 
Avoman  living  separate  from  her  husband,  with  no 
maintenance,  and  the  executor  paid  it  to  the  wife, 
and  took  her  receipt  for  it ;  yet,  on  a  suit  instituted 
by  the  husband  against  the  executor,  he  was  decreed 
to  pay  it  over  again,  with  interest.*  It  was  also 
adjudged  that,  if  the  husband  and  wife  were  divorced 
a  mensa  et  thoro,  and  a  legacy  was  left  to  her,  the 
husband  alone  could  give  a  proper  receipt  for  it, 
and  consequently  to  him  alone  was  it  payable.f 

But  now,  by  statutes  in  almost  all  of  our  States, 
a  married  female  may  take  by  devise  and  bequest, 
and  hold  to  her  sole  and  separate  use,  real  and  per- 
sonal property,  or  any  interest  or  estate  therein,  in 
the  same  manner,  and  with  the  like  effect,  as  if 
she  were  unmarried. 

Sectiox  5. — The  Peeson  who  may  Take. 

The  only  person  generally  disqualified  to  receive 
a  legacy  is  the  witness  to  a  will.  The  law  has 
thought  fit  to  guard  a  deceased  from  all  imposition, 
and  it  is  thought  if  a  person  took  any  beneficial  inter- 
est under  a  will  to  which  he  was  one  of  the  wit- 
nesses, he  could  not  be  a  disinterested  jierson  to 
attest  its  due  execution. 

In  New  York,  he  is  disqualified,  if  such  will  can- 
not be  proved  without  his  testimony; J  and,  in  a 

•  Palmer  v.  Trevor,  1  Vem.  261 ;  ToUer  320.        t  Wms.  Exrs.  1213. 
t  2  Rev.  St.  C5.    So  in  California  :  CivU  Code  1282. 


120  CTJEIOSITIES    OF   WILLS. 

case  on  this  head,  Caw  v.  Robertson,*  where  there 
were  three  witnesses  to  the  will,  each  of  whom  took 
legacies  under  it,  the  Surrogate  called  the  first  two, 
whose  names  appeared  first,  which  were  sufficient, 
and  omitted  calling  the  third.  It  was  decided  that 
he  only  became  entitled  to  the  legacy,  as  the  will 
could  be  proved  Avithout  his  testimony. 

An  executor  is  not  disqualified  from  receiving  a 
legacy ;  but  in  his  case,  it  seems,  it  will  not  carry 
interest.! 

In  wills,  legatees  are  sometimes  designated  under 
a  general  name  or  class,  and  a  difficulty  often  arises 
to  determine  what  individuals  shall  be  included  in 
such  a  designation.  Where  a  testator  uses  such  gen- 
eral terms,  without  defining  or  limiting  them,  they 
have  a  meaning  given  them  by  the  general  rules  of 
construction  in  law.  Indeed,  the  testator's  inten- 
tion may  be  frustrated  by  using  certain  terms,  which 
may  appear  to  him  to  include  or  exclude  certain 
individuals  in  his  bounty,  but  which  may  be  so  en- 
larged or  restricted  by  the  rules  of  law  as  to  defeat 
their  object.  As  in  the  instance  where  a  lady,  dy- 
ing, and  intending  to  give  her  personal  wearing  ap- 
parel to  her  servant  maid,  bequeathed  to  her  all  her 
personalty,  which  under  the  rules  of  law  meant  all 
her  personal  estate,  which  was  valued  at  $60,000, 
and  which  under  such  a  term  must  necessarily  go 
to  the  servant. 

In  general,  no  rule  is  better  settled  than  that 
legatees  must  answer  the  description  and  character 
given  them  in  the  will,  but  it  will  presently  appear, 

*  X  Seld.  125.      t  Morris  v.  Kent,  2  Edw.  Ch.  182 ;  Preston  on  Leg.  281. 


LEGACIES.  121 

from  the  cases,  that  there  are  many  important  ex- 
ceptions to  it. 

We  shall  refer  to  some  of  these  general  names  oi 
classes,  sometimes  met  with  in  a  will,  by  which  in- 
dividuals belonging  to  such  classes  become  entitled 
to  a  legacy. 

When  a  testator  leaves  a  legacy  to  "  children,"* 
it  is  a  general  rule,  that  those  within  that  designa- 
tion at  the  time  of  the  testator's  death  become  enti- 
tled ;  but  if,  from  the  expressions  and  context  of  the 
will,  it  is  ascertained  that  he  intended  only  those 
who  answered  that  description  at  the  date  of  thi 
instrument,  such  intention  will  be  observed.!  A 
court  of  equity,  however,  is  careful  that  a  liberal 
construction  be  placed  upon  such  a  term,  and  al- 
ways, if  possible,  will  hold  that  it  shall  include 
children  in  existence  at  the  death  of  the  testator, 
and  especially  if  the  testator  stood  in  loco  parentis 
to  the  legatees.^ 

The  general  rule,  it  is  claimed  in  Collin  v.  Col- 
lin, §  is,  that  in  a  will  of  personal  estate  the  tes- 
tator is  presumed  to  speak  in  reference  to  the  time 
of  his  death,  and  not  to  any  previous  or  subsequent 
period. 

A  child  in  ventre  sa  mere,  at  the  time  of  the  tes- 
tator's death,  is  held  to  be  in  esse,  if  it  is  afterwards 

*The  word  "  children"  includes  only  the  immediate  legitimate  do- 
Ecendants,  and  not  a  stei>child  :  Cromer  v.  Pinckney,  3  Barb.  Ch.  466  ; 
Mowatt  V.  Carrow,  7  Paige,  339.  Nor  does  it  include  grandciuldreu  ; 
Eadcliff  V.  Buckley,  10  Ves.  195  ;  4  Watts.  82. 

t  Sherer  v.  Bishop,  4  Bro.  0.  0.  55 ;  2  Ves.  84. 

%  Doo  V.  Clark,  2  H.  Bl.  399  ;  Balm  v.  Balm,  3  Sim.  492. 

§  1  Barb.  Ch.  637  ;  Wms.  Exrs.  934. 
C.  OF  W.— 11. 


122  CUEIOSITIES   OF   WILLS. 

born  alive,  and  to  be  equally  entitled  as  those  chil- 
dren who  were  born  in  the  lifetime  of  the  testator.* 

If  there  be  a  postponement  of  the  division  of  a 
legacy  given  to  a  class  of  individuals  until  a  certain 
time  after  the  testator's  death,  every  one  who  comes 
under  the  descrij)tion  at  the  time  when  the  distribu- 
tion is  made  will  be  entitled,  no  matter  if  he  was  not 
in  esse  at  the  time  of  the  testator's  death,  unless  from 
the  will  it  be  gathered  that  the  testator  intended 
to  limit  his  bounty  to  those  only  who  were  living  at 
the  time  of  his  decease.* 

And  where  the  legacy  in  the  will  indicates  a  pres- 
ent bequest  of  a  fund  which  is  to  be  distributed  at 
a  period  subsequent  to  the  death  of  the  testator, 
those  who  are  in  esse  at  the  time  of  his  death  will 
take  vested  interests  in  the  fund,  but  subject  to 
open  and  let  in  others  who  may  come  into  being, 
so  as  to  answer  the  description  and  belong  to  the 
class  at  the  time  appointed  for  the  distribution. 
Where,  however,  a  fund  is  bequeathed  to  children 
or  others  as  a  class,  to  be  divided  equally  among 
the  persons  composing  the  class,  when  they  arrive 
at  the  age  of  twenty-one,  or  marriage,  only  those 
who  shall  have  been  born  or  begotten  when  the 
oldest  arrives  at  the  age  of  twenty-one,  or  Avhen  the 
first  of  the  class  is  married,  are  entitled  to  share 
in  the  fund.* 

Although,  as  a  general  rule,  a  devise  to  children, 
without    any    other  description,   means  legitimate 

*  Rawlins  v.  RawUns,  2  Cox's  Ca.  425 ;  MarseUis  v.  Thalheimer,  2 
Paige,  35. 
t  Jenkins  v.  Freyer,  4  Paige,  47. 
±  CoUin  V.  CoUin,  1  Barb.  Ch.  630. 


LEGACIES.  123 

children,  and  if  the  testator  has  such  children,  parol 
evidence  cannot  be  received  to  show  that  a  differ- 
ent class  of  persons  was  intended ;  still,  in  these 
cases,  as  in  all  others,  it  is  proper  to  look  into  cir- 
cumstances dehors  the  will,  to  see  whether  there 
are  any  persons  answering  the  description  of  the 
legatees  in  the  legal  sense  of  the  term  used ;  and  if 
it  appear  that  there  are  not  any  such  persons,  it  is 
then  allowable  to  prove  the  situation  of  the  testa- 
tor's family,  to  enable  the  court  to  ascertain  who 
were  intended  by  the  testator  as  the  object  of  his 
bounty.  Thus,  in  Gardner  v.  Heyer,*  where  the 
testator  died  a  bachelor,  but  had  for  a  long  time 
lived  and  cohabited  with  M.  Smith,  by  whom  he 
had  and  left  four  children,  a  son  and  three  daugh- 
ters, who  had  been  by  him  j)laced  at  school  and  ac- 
knowledged as  his  children,  and  were  generally  re- 
puted as  such  by  his  friends ;  and  by  his  will  he 
gave  to  his  son  John  $10,000,  to  be  paid  to  him 
when  he  arrived  at  the  age  of  twenty-four,  the  in- 
terest in  the  meantime  to  be  applied  to  his  mainte- 
nance and  education  j  and  he  also  gave  to  each  of  his 
daughters  S3,000,  payable  at  the  age  of  twenty-one, 
and  the  interest  in  the  meantime  to  be  applied  to 
their  education  and  support;  and  he  directed  his 
executors  and  trustees  to  pay  $65  to  M.  Smith,  the 
mother  of  the  children,  quarterly,  during  her  life,  if 
she  remained  single  and  had  no  more  children ;  and 
he  devised  and  bequeathed  all  the  residue  of  his 
estate,  real  and  personal,  to  his  executors  and 
trustees,  and  the  survivor  of  them  in  fee,  in  trust, 

•  2  Paige,  11. 


124  CUEIOSITIES   OF  WILLS. 

to  pay  two-thirds  of  the  income  thereof  to  his  son 
John,  and  one-third  to  his  daughters  during  their 
lives,  with  remainder  to  their  issue ;  and  he  gave 
cross-remainders  to  the  survivors  in  case  any  of  the 
children  should  die  without  issue ;  and  he  also  ap- 
pointed the  executors  and  trustees,  guardians  of 
the  children  during  their  minority,  and  earnestly 
requested  that  the  utmost  care  should  be  taken  of 
their  morals  and  education.  The  court  declared 
that  there  was  no  doubt  as  to  the  legal  and  equit- 
able rights  of  the  children  of  M.  Smith  under  the 
will. 

A  bequest  to  an  unborn,  illegitimate  child,  the 
mother  being  described,  is  valid,  unless  the  child 
be  pointed  out  as  having  a  certain  father,  for  then 
it  is  void,  the  bastard  being  in  point  of  law  nobody's 
child — -filius  nullius.* 

A  bequest  by  a  husband  to  his  "  beloved  wife," 
not  mentioning  her  by  name,  applies  exclusively  to 
the  individual  who  answers  the  description  at  the 
date  of  the  will,  and  is  not  to  be  extended  to  an 
after  taken  wife.f 

A  testator  was  betrothed  to  a  lady,  and  by  a  cod- 
icil to  his  will,  after  mentioning  her  name,  and  al- 
luding to  his  intended  marriage  with  her,  he  gave 
£3,000  to  his  wife.  Before  the  marriage  he  died, 
and  it  was  held  that  the  lady  was  entitled  to  the 
legacy4 

A  gift  to  "  my  servants,"  it  is  thought,  will  extend 

*  Pratt  V.  Flamen,  5  Har.  &  Johns.  10. 

t  Garrett  v.  Niblock,  1  R.  &  M.  629 ;  Lady  Lincoln  v.  Pelham,  10  Ves. 
106. 
X  Schloss  V.  Stiebel,  6  Sim.  1. 


LEGACIES.  125 

to  those  in  testator's  service  at  the  date  of  the  will, 
though  they  leave  it  before  his  death.*  Redfield 
prefers  to  comprise,  by  such  a  phrase,  only  those 
who  are  in  the  testator's  service  at  the  time  of  his 
decease,  no  matter  whether  they  were  his  servants 
at  the  time  of  his  making  his  will  or  not.t  The 
best  rule  would  be  not  to  admit  those  who  entered 
the  testator's  service  recently -before  his  death,  nor 
those  who  left  before  that  time,  but  to  hold  only 
those  entitled  who  were  in  his  service  when  the  wiU 
was  made  as  well  as  at  his  death. 

Difficulties  sometimes  arise  from  the  want  of  ex- 
plicitness  in  pointing  out  a  legatee  by  a  testator, 
and  again  from  a  mistake  in  naming  or  designating 
him.  The  general  rule  upon  the  subject  is,  that 
when  the  name  or  description  of  the  legatee  is  er- 
roneous, and  there  is  no  reasonable  doubt  as  to  the 
person  who  was  intended  to  be  named  or  described, 
the  mistake  will  not  disappoint  the  bequest.  The 
error  may  be  rectified  and  the  true  intention  of  the 
testator  ascertained  in  two  ways :  1.  By  the  context 
of  the  AviU ;  2.  To  a  certain  extent  by  parol  evi- 
dence. 

1.  The  mistake  may  be  rectified  by  the  context. 
Thus  an  error  in  the  name  of  the  legatee  may  be 
obviated  by  the  accuracy  of  his  description:  as 
where  a  legacy  is  given  to  "  my  namesake  Thomas^ 
the  second  son  of  my  brother,"  and  the  testator's 
brother  had  no  son  named  Thomas,  but  his  second 
son  is  named  William,  there  is  sufficient  certainty 
in  the  description  to  entitle  the  second  son. 

♦  1  Jarman,  306.  t  Vol.  II.  <J6. 


126  CURIOSITIES    OF   WILLS. 

And  again,  where  the  testator  bequeathed  to  his 
bi'other,  Cormac  Connolly,  and  to  his  two  sisters, 
Mary  and  Ann,  a  certain  residue,  and  afterwards  by 
a  codicil  bequeathed  as  follows  :  "  To  my  nephew, 
Cormac  Connolly,  the  son  of  my  brother,  Cormac 
Connolly,  the  sum  of  five  hundred  dollars  for  his 
ecclesiastical  education,  which  sum  is  to  be  taken 
from  what  I  have  bequeathed  to  my  brother  Cormac, 
and  to  my  sisters  Mary  and  Ann."  And  it  appeared 
the  testator  never  had  a  brother  named  Cormac, 
but  that  he  had  a  nephew,  Cormac,  who  was  the  son 
of  his  only  surviving  brother  James,  who  was  pur- 
suing classical  studies  in  Ireland  with  a  view  to  an 
ecclesiastical  education,  and  who  was  the  only 
nephew  of  that  name ;  it  was  held  that  the  legatee 
intended  by  the  testator  by  the  name  of  his  brother, 
Cormac,  was  the  father  of  his  nephew,  Cormac,  and 
that  his  brother  James  was  the  person  entitled  to 
share  in  the  residuary  estate.* 

So,  an  error  in  the  description  may  be  obviated 
by  the  certainty  of  the  name ;  as,  where  a  legacy 
was  given  to  "  Charles  Millar  Standen  and  Caroline 
Eliz.  Standen,  legitimate  son  and  daughter  of  Charles 
Standen,  now  residing  with  a  company  of  players," 
and  it  appeared  they  were  illegitimate  children, 
their  claim  was  nevertheless  supported.! 

The  mistake  may,  to  a  certain  extent,  be  rec- 
tified by  parol  evidence.  The  admissibility  of  parol 
evidence  in  these  cases  has  given  rise  to  much  dis- 

*  Connolly  v.  Pardon,  1  Paige,  291.  In  Thomas  v.  Stevens,  4  Johns. 
Ch.  607,  a  legacy  to  Cornelia  Thompson  was  held  a  good  bequest  to  Car- 
oline Thompson,  it  appearing  that  she  was  the  person  intended. 

t  standen  v.  Standen,  2  Ves.  Jr.  589. 


LEGACIES.  127 

cussion  ;  it  forms  one  of  the  exceptions  to  the  gen- 
eral rule,  not  to  admit  parol  evidence  where  a  will 
is  void  for  uncertainty.  This  is  treated  of  under 
the  seventh  proposition  of  Wigram  on  Wills,*  in  a 
very  exhaustive  manner,  and  the  cases  fully  exam- 
ined. We  will  merely  here  point  out  when  such 
evidence  is  admissible  and  when  it  is  rejected. 
The  rule  is  thus  laid  down :  Where  the  object  of  a 
testator's  bounty,  or  the  subject  of  disposition,  is 
described  in  terms  which  are  applicable  indiifer- 
ently  to  more  than  one  person  or  thing,  evidence  is 
admissible  to  prove  which  of  the  persons  or  things 
so  described  was  intended  by  the  testator. 

Thus,  when  a  blank  is  left  for  the  Christian  name 
of  the  legatee,  parol  evidence  is  admissible  to  sup- 
ply the  omission,  as  in  the  case  of  Price  v.  Page,t 

in  which  the  testator  bequeathed  "  to Price, 

the  son  of  Price,  the  sum  of  £100."    No 

person  but  the  plaintiff  claimed  the  legacy,  and  he 
produced  evidence  from  which  it  appeared  that  he 
was  the  son  of  a  niece  of  the  testator ;  that  his 
father  and  grandfather's  names  were  Price ;  that 
the  testator  had  no  other  relation  of  that  name,  and 
that  he  had  been  before  frequently  the  object  of  the 
testator's  care;  that  the  testator  said  he  had  and 
would  provide  for  the  plaintiff.  Upon  this  evidence, 
Lord  Alvanley  determined  in  favor  of  the  claim. 

When  the  omission  consists  of  the  entire  name  of 
the  legatee,  parol  evidence  cannot  be  admitted  to 
supply  the  blank ;  for  that  would  amount  to  a  be- 
quest by  oral  testimony.    Thus,  in  Winne  v.  Little- 

♦  See  Chap.  VIU.  t  4  Ves.  680. 


128  CUEIOSITIES   OF   WILLS. 

ton,*  A  bequeathed  all  his  personal  estate  to  his 
executor,  leaving  a  blank,  and  died  without  naming 
any  person  executor.  The  legacy  was  adjudged  to 
be  void.  And  in  Hunt  v.  Hort,t  a  woman  devised 
her  houses  in  the  city  and  at  Richmond  to  her 
niece,  dame  Margaret  Hort,  and  Richard  Baker, 
her  attorney,  in  trust  to  sell.  She  then  gave  some 
pictures  specifically,  and  thus  proceeded:  "My 
other  pictures  to  become  the  property  of  Lady 
."  The  testatrix  then  made  her  niece,  Har- 
riet Hunt,  her  residuary  legatee,  and  appointed 
Lady  Hort  and  Richard  Baker  her  executors.  Lord 
Thurlow  was  of  opinion  that  he  could  not  supply 
the  blank  by  parol  evidence,  and  observed  that, 
where  there  was  only  a  title  given,  it  was  the  same 
as  a  total  blank. 

If,  however,  a  legatee  be  described  by  initials  of 
his  name  only,  parol  evidence  maybe  given  to  prove 
his  identity.  This  was  done  in  the  case  of  Abbott 
V.  Massie,t  where  the  bequest  was :  "  Pint  Silver 
Mug  and  all  my  China  to  Mrs.  G.,  and  £10  for 
mourning."  Mrs.  Gregg  claimed  the  legacies,  and 
(the  Master  having  refused  to  admit  testimony) 
offered  to  show  that  she  was  the  person  intended. 
Exception  was  taken  to  his  ruling,  upon  which  the 
court  declared  that  he  ought  to  receive  evidence  to 
prove  who  Mrs.  G.  was. 

The  principle  upon  which  parol  evidence  is  ad- 
mitted in  these  cases  is  a  presumj^tion  of  possible 
ignorance  in  the  testator  of  the  Christian  name  of 
the  legatee,  or  of  his  being  accustomed  to  calling  a 

*  2  Cha.  Ca.  51.  t  3  Bro.  C.  U.  311.  1 3  Vcs.  148. 


LEGACIES.  129 

person  by  the  name  of  Mrs.  B,  a  presumption  •which, 
being  riised  upon  the  face  of  the  will,  may  be  con- 
limied  and  explained  by  extrinsic  evidence.  Upon 
this  gi'ound,  it  is  consistent  with  the  established 
doctrine  that  such  evidence  is  admissible  to  remove 
latent  ambiguities,  but  cannot  be  admitted  to  explain 
^yatent  ambiguities  in  a  will.  This  is  founded  on 
Lord  Bacon's  well-known  maxim :  "  Amhiguitas 
verhorum  latens  verijicatione  suppletur-'' 


CHAPTER  V. 

Limits  to  Testamentary  Disposition". 

While  the  law  has  generally  granted  the  privi- 
lege of  testamentary  disposition,  it  has  not  deemed 
it  expedient  or  politic  to  give  the  absolute  and  un- 
restricted power,  so  that  a  person  can  make  a  post- 
humous disposition  of  his  property  in  any  way  he 
thinks  j)roper.  For  the  public  welfare,  it  has  seem- 
ed judicious  to  impose  certain  restrictions  on  the 
right  exercised  by  a  person  in  distributing  his  prop- 
erty after  his  decease.  It  is  well  known  that  if  an 
uncontrolled,  absolute  power  were  given,  that  indi- 
viduals would  sometimes  disregard  the  claims  of 
those  who  have  a  natural  right  to  their  bounty,  and 
gratify  their  pride,  their  whims,  or  their  vagaries 
in  disposing  of  their  property  by  will. 

The  possession  of  a  large  amount  of  property 
during  a  man's  lifetime  gives  him  such  a  conscious- 
uess  of  power  and  authority,  that  it  is  difficult  to 
disabuse  his  mind  of  the  idea  that  he  cannot  per- 
petuate his  name,  his  influence  and  control,  after  his 
death,  by  distributing  and  disposing  of  his  prop- 
erty according  to  his  pleasure. 

The  law  is  full  of  instances  where  men  have  at- 
tempted, by  schemes  in  devising  their  property,  to 
establish  a  name  and  an  influence  that  would  abide 
long  after  the  mind  that  conceived  them  had  ceased 
to  act  or  control. 

ri30] 


LliUTS    TO   TESTAMENTARY   DISPOSITION.       131 

This  has  been  the  ambition,  we  may  call  it  the 
infirmity,  of  some  great  minds;  indeed,  it  seems 
sometimes  a  special  characteristic  of  such  persons 
to  desire  to  live  thus  in  the  memory  of  posterity, 
by  some  remarkable  and  striking  mode  of  disposing 
of  their  property  after  their  decease,  so  as  to  leave 
some  visible  token  of  their  influence  and  prestige, 
either  in  an  institution  or  in  a  family,*  either  in  a 
charity  or  a  monument. 

When  properly  and  judiciously  exercised,  this 
desire  has  led  to  the  foundation  of  those  noble  in- 
stitutions for  the  relief  of  the  indigent  and  helj)- 
less,  for  the  promotion  of  knowledge  and  education, 
for  the  development  of  science  and  art,  and  for  the 
furtherance  of  various  benevolent  designs,  which 
are  the  boast  and  glory  of  our  modern  civilization, 
Jind  which  have  done  so  much  to  foster  and  advance 
that  civilization. 

But  at  an  early  period  this  desire  or  infirmity 
was  made  use  of  by  the  clergy,  who  wielded  such 
vast  influence  over  the  dying,  to  induce  testatoi-s  to 
dispose  of  property  for  enriching  churches  and  mon- 
asteries, and  various  other  institutions.  So  great 
did  the  evil  become,  and  so  many  grievous  abuses 
sprung  up,  that  the  public  welfare  was  threatened 
and  endangered,  and  in  consequence  of  this,  a  bit- 
ter and  determined  struggle  ensued  between  the 
civil  and  spiritual  powers,  lasting  through  centuries 
and  giving  a  peculiar  bias  to  certain  legislation. 
As  soon  as  some  means  would  be  devised  to  check 
the  abuses,  and  to  limit  the  power  of  the  clergy, 

♦  Vide  the  case  of  Shakspeare,  Introduction,  p.  23. 


132  CURIOSITIES    OF   WILLS. 

some  new  device  would  be  contrived  Ly  their  in- 
genuity to  evade  the  rules  or  nullify  a  law.  The 
establishment  of  the  law  of  Uses  and  Trusts  is  a 
good  example  of  these  ingenious  devices  to  evade 
a  statute. 

The  several  Statutes  of  Mortmain  had  their  ori- 
gin in  this  effort  of  the  civil  power  to  curb  the  in- 
fluence of  the  si^iritual  power,  and  check  a  dan- 
gerous tendency  to  enrich  corporations  of  a  reli- 
gious or  eleemosynary  character.  These  several 
acts  occupy  a  prominent  place  in  English  history, 
and  characterize  a  very  important  epoch  of  that 
history.  Their  influence  has  extended  to  us,  who 
have  gathered  experience  from  the  past,  and  this  is 
plainly  evinced  in  our  Statutes  of  Wills  in  the  dif- 
ferent States,  which  disqualify  corporations  from 
taking  by  devise  unless  expressly  authorized.* 

It  was  found,  however,  that  an  indiscriminate 
prohibition  would  prevent  the  foundation  of  many 
worthy  and  useful  institutions,  which,  instead  of 
being  a  menace,  would  be  a  safeguard  to  the  wel- 
fare of  the  State  ;  and  hence  a  distinction  arose 
between  such  bequests  as  were  for  charitable  uses, 
and  those  for  superstitious  uses,  the  latter  of  which 
were  so  obnoxious  to  the  law,  and  foi'bidden  by  it. 
A  superstitious  use  is  thus  defined  in  Bacon's 
Abridgement. t  It  is,  "where  lands,  tenements, 
rents,  goods,  or  chattels  are  given  secured,  or  ap- 

*  2  N.  Y.  Rev.  St.  67;  Civil  Code  Cal.  1275.  In  Indiana,  Massachu- 
setts, and  Pennsylvania,  there  is  no  Mortmain  act. 

t  Charitable  Uses  (D) .  The  doctrine  of  Superstitious  Uses  cannot  bo 
to  much  extent  applicable  here,  as  we  have  no  religion  recognized  and 
established  by  the  State. 


LIMITS   TO   TESTAMENTAEY   DISPOSITION.       133 

pointed  for  and  towards  the  maintenance  of  a 
priest  and  chaplain  to  say  mass ;  for  the  mainte- 
nance of  a  priest  or  other  man,  to  pray  for  the  soul 
of  any  dead  man,  in  such  a  church,  or  elsewhere ; 
to  have  and  maintain  perpetual  obits,  lamps,  torch- 
es, etc,,*  to  be  used  at  certain  times,  to  help  to 
save  the  souls  of  men  out  of  purgatory ;  these  and 
such  like  uses  are  declared  to  be  superstitious." 

Devises  to  charitable  uses  were  supported  in 
England  at  an  early  period  in  the  common  law, 
which  is  supposed  to  have  derived  its  maxims  on 
this  head  from  the  civil  law.  Lord  Nottingham 
says,  in  the  case  of  the  Attorney-General  v. 
Tancred,t  that  devises  to  corjoorations,  though  void 
under  the  Statute  of  Wills,  were  good  in  equity  if 
given  to  charitable  uses.:}: 

The  Statute  of  the  43d  of  Elizabeth  enumerates 
what  charitable  uses  were.  They  were,  accord- 
ing to  this  statute,  gifts  for  the  relief  of  aged, 
impotent,  and  poor  people ;  for  maintenance  of  sick 
and  maimed  soldiers  and  mariners ;  for  ease  of  poor 
inhabitants  concerning  payment  of  taxes ;  for  aid  of 
young  tradesmen,  handicraftsmen,  and  persons  de- 
cayed ;  for  relief,  stock,  and  maintenance  of  houses 
of  correction;  for  marriages   of  poor  maids ;§  for 

*  Vide  Win  of  Lady  Alice  West,  p.  18. 

t  Ch.  Preo.  272.    Eyre  v.  Countess  of  Salisbury,  2  P.  Wms.  119. 

X  Lord  Hardwicie,  in  Jones  v.  Williams,  Amb.  651,  defines  a  charitable 
use  as  "  a  gift  to  a  general  public  use,  •which  extends  to  the  poor  as  well 
as  the  rich." 

§  It  may  be  thought  a  singular  purpose  of  charity  to  provide  for  the 
"  marriages  of  poor  maids,"  and  one  that  would  accomplish  but  little  in 
a  field  where  the  objects  would  be  bo  numerous ;  nevertheless,  the  be- 

C.  OF  W.— 1». 


134  CUEIOSITIES    OF   AVILLS. 

education  and  pi-ef erment  of  orphans ;  for  schools  of 
learning,  free  schools,  and  scholai's  in  universities ; 
for  relief  or  redemption  of  prisoners  or  captives ; 
for  repair  of  bridges,  ports,  havens,  causeways, 
churches,  sea-banks,  and  highways. 

nevolent  designs  of  men  have  been  turned  in  that  channel,  as  ■well  as  in 
other  various  directions  mentioned  in  the  statute. 

By  the  will  of  Mr.  Henry  Eaine,  a  wealthy  London  brewer,  a  fund  was 
established  for  just  such  a  purpotse.  Among  the  notable  charitable  in- 
stitutions of  London,  there  is  none  more  novel  in  inception  or  more 
unique  in  management  than  Raine's  Asylum,  established  by. him  in 
1736,  for  clothing,  educating,  and  properly  training  for  domestic  service 
forty  young  girls,  taken  from  a  lower  school  iireviously  established  by 
him.  On  arriving  at  the  age  of  twenty-two,  any  girl  who  has  been  ed- 
ucated in  the  asylum,  and  who  can  produce  satisfactory  testimonials  of 
her  conduct  while  in  service,  may  become  a  candidate  for  a  marriage 
portion  of  one  hundred  pounds,  for  which  six  girls  are  allowed  to  draw 
twice  in  each  year,  on  the  first  of  May  and  the  fifth  of  November.  The 
drawing  is  in  this  manner  :  The  treasurer,  in  compliance  with  the  ex- 
plicit directions  of  Mr.  Raine,  takes  a  half  sheet  of  white  paper  and 
•writes  thereon  the  words,  "one  hundred  pounds."  Next,  he  takes  as 
many  blank  sheets  as,  with  the  one  written  on,  will  correspond  with 
the  nimiber  of  candidates  present.  Each  of  these  half  sheets  is  wrapped 
tightly  round  a  little  roller  of  wood,  tied  with  a  narrow  green  ribbon, 
the  knot  of  which  is  firmly  sealed.  The  rolls  are  then  formally  de- 
posited in  a  large  canister  placed  upon  a  small  table  in  the  middle  of  the 
room.  This  being  done,  the  candidates,  one  at  a  time,  advance  towards 
the  canister,  each  drawing  therefrom  one  of  the  small  rolls.  When  all 
have  drawn,  they  proceed  to  the  chairwoman,  who  cuts  the  ribbon  which 
secures  each  roll,  and  bids  the  candidates  unfold  the  various  papers. 
There  is  no  need  to  ask  which  of  them  has  gained  the  prize — the  spark- 
ling eyes  of  the  fortunate  "  hundred-pound  girl"  reveal  the  secret 
more  quickly  than  it  could  be  spoken  by  the  lips.  The  scene  seems  to 
be  one  in  which  Mr.  Raine  took  deep  interest,  for  in  his  will,  after  ap- 
pointing his  nephews  to  purchase  £4,000  stock  in  order  to  make  a 
permanent  provision  for  these  marriage  portions,  he  says  :  "  I  doubt 
not  but  my  nephews  would  cheerfully  purchase  the  said  stock  if  they 
had  seen,  as  I  have,  six  poor  innocent  maidens  come  trembling  to  draw 
the  prize,  and  the  fortunate  maid  that  got  it,  burst  out  in  tears  with  ex- 
cess of  joy."  The  portion  drawn  in  May  is  given  after  a  wedding  on  the 
fifth  of  November ;  the  November  portion  being  given  in  like  manner  on 
May  day.  The  author  witnessed  one  of  these  marriage  ceremonies  in 
the  church  of  St.  George's-in-the-East. 

The  number  of  marriage  portions  given  since  the  opening  of  the 
asylum  is  said  to  exceed  three  hundred. 


LIMITS    TO   TESTAMENTARY    DISPOSITION.       135 

But  as  it  was  found  that  persons  "  dying  and  lan- 
guishing"— in  extremis  —  were  frequently  unduly 
influenced  to  dispose  of  their  proj^erty  to  such  chari- 
table purposes,  against  the  rights  of  their  family  or 
kindred,  it  was  enacted  by  the  Statute  of  Mortmain, 
9  George  II,  that  no  property  in  land,  or  arising  out 
of  land,  could  pass  to  such  purposes,  unless  by  deed 
indented,  sealed,  and  delivered  in  the  presence  of 
two  or  more  credible  Avitnesses,  twelve  calendar 
months  before  the  death  of  the  donor  or  grantor.* 
Of  course,  these  statutes  have  no  operation  in  this 
country,  unless  by  special  enactment.  The  statute 
of  Elizabeth  not  being  in  force  in  New  York,  it  was 
therefore  insisted  that  no  devise  to  charitable  uses 
was,  in  consequence,  valid. 

The  fluctuations  of  the  law  on  this  point  present 
a  remai'kable  and  not  a  very  satisfactory  example,  of 
varying  judicial  opinion  in  that  State.  The  earlier 
decisions  of  its  highest  court  have  lately  been  over- 
ruled, and  the  earlier  doctrines  on  the  subject  dis- 
carded. Thus,  in  Williams  v.  Williams,!  it  was 
held  that  the  law  of  charitable  uses  was  not  founded 
on  the  statute  of  Elizabeth,  but  was  a  part  of  the 
common  law,  which  is  still  in  force  here,  so  far  as 
conformable  to  our  polity  and  adapted  to  our  insti- 
tutions ;  and  that  a  court  of  equity,  exercising  the 
chancery  jurisdiction  of  the  English  courts,  will 
carry  out  the  purpose  of  a  testator  ;  and  that,  not- 

*  This  etatuto  has  been  adopted  in  Massachusetts,  North  Carolina, 
Kentucky,  Indiana,  Pennsylvania,  and  several  other  States.  2  Kent  285. 
In  Pennsylvania,  the  will,  to  make  a  valid  devise  to  charitable  uses, 
must  be  made  a  month  before  the  testatator's decease.  Price  v.  Marwell, 
28  Penu.  23. 

t  8  N.  Y.  526. 


136  CUEIOSITIES   OP   WILLS. 

withstanding  the  statutory  prohibition  against  de- 
vises of  lands  to  corporations,  a  devise  of  a  charity, 
not  directly  to  a  corporation,  but  in  trust  for  a 
charitable  corporation,  would  be  good.  Subsequent 
cases  followed  this  decision  of  Williams  v.  Wil- 
liams ;  but  later  cases  have  altered  the  law  in  New 
York.  The  case  Avhich  effected  a  change,  and 
finally  determined  the  law,  is  of  historical  as  well  as 
legal  importance,  and  deserves  a  detailed  statement. 

It  is  the  case  of  Levy  v.  Levy,*  most  learnedly 
and  ably  argued  and  examined  in  the  various  courts 
of  the  State.  Commodore  Uriah  P.  Levy,  the  tes- 
tator, was  an  eminent  and  wealthy  officer  of  the 
United  States  navy,  of  the  Jewish  religion,  who  be- 
came the  owner  of  the  famous  farm  of  Jefferson,  at 
Monticello,  in  Virginia,  and  who  died  in  New  York 
in  March,  1862,  leaving  property  valued  at  over 
half  a  million  dollars.  In  his  will,  after  making 
various  bequests,  he  provided : 

"  After  paying  the  above  legacies  and  bequests, 
or  investing  for  the  same,  and  subject  to  my  wife's 
dower  and  use  of  furniture,  I  give,  devise,  and  be- 
queath my  farm  and  estate  at  Monticello,  in  Vir- 
ginia, formerly  belonging  to  President  Thomas  Jef- 
ferson, together  with  all  the  rest  and  residue  of  my 
estate,  real,  personal,  or  mixed,  not  hereby  disposed 
of,  wherever  or  however  situated,  to  the  people  of 
the  United  States,  or  such  persons  as  Congress  shall 
appoint  to  receive  it,  and  especially  all  my  real 
estate  in  the  city  of  New  York,  in  trust,  for  the 
sole  and  only  purpose  of  establishing  and  maintain- 

*  33  N.  y.  97,  reversing  40  Barb.  5S5. 


LIMITS    TO    TESTAMENTARY   DISPOSITION.      137 

ing  at  said  farm  of  Monticello,  in  Virginia,  an  agri- 
cultural school,  for  the  purpose  of  educating  as 
practical  farmers,  children  of  the  warrant  officers  of 
the  United  States  navy  whose  fathex's  are  dead. 
Said  children  are  to  be  educated  in  a  plain  way  in 
the  ordinary  elementary  branches  to  fit  them  for 
agricultural  life,  and  to  be  supported  by  this  fund, 
from  the  age  of  twelve  to  sixteen,  and  each  of  them 
to  be  brought  up  to  do  all  the  usual  work  done  ou 
a  farm ;  the  said  farm  to  be  so  cultivated  by  the 
said  boys  and  their  instructors  as  to  raise  all  they 
may  require  to  feed  themselves,  and  the  schoolmas- 
ter and  one  other  teacher,  and  one  superintendent 
of  the  said  farm.  I  also  give  and  bequeath,  for  the 
purpose  of  giving  such  fuel  and  fencing  for  said 
Monticello  farm-school,  two  hundred  acres  of  wood- 
land of  my  Washington  Farm,  called  the  Bank 
Farm,  in  Virginia,  the  said  two  hundred  acres  to 
be  taken  from  said  farm  hereby  devised  to  my 
nephew  Ashel,  and  to  be  designated  by  said  Ashel. 

"  In  establishing  said  farm-school,  I  especially 
require  that  no  professorships  be  established  in  said 
school,  or  professors  employed  in  the  institution ; 
my  intention  in  establishing  this  school  is  charity 
and  usefulness,  and  not  for  the  purpose  of  pomp. 
In  proportion  to  the  smallness  of  number  of  the 
teachers,  so  will  industry  prevail. 

"  The  institution  must  be  kept  within  the  revenue 
derived  from  this  endowment ;  and  under  no  cir- 
cumstances can  any  part  of  the  real  or  personal 
estate  hereby  devised  be  disposed  of,  but  the  rent 
and  income  of  all  said  estate,  real  and  personal,  is 


138  CURIOSITIES    OF   WILLS. 

to  be  held  forever  inviolate,  for  tlie  pui-pose  of  sus- 
taining this  institution.  The  estate  and  lands  in 
New  York  can  be  leased  to  great  advantage  for 
that  purpose. 

"  Should  the  Congress  of  the  United  States  re- 
fuse to  acceiDt  of  this  bequest,  or  refuse  to  take  the 
necessary  steps  to  carry  out  this  intention,  I  then 
devise  and  bequeath  all  the  property  hereby  devised 
to  the  people  of  the  State  of  Virginia,  instead  of 
the  people  of  the  United  States.  Provided  they, 
by  acts  of  their  legislature,  accept  and  carry  it  out 
as  herein  directed.  And  should  the  people  of  Vir- 
ginia, by  neglect  of  their  legislature,  decline  to 
accept  this  said  bequest,  I  then  devise  and  bequeath 
all  of  my  said  property  to  the  Portuguef  e  Hebrew 
Congregation  of  the  city  of  New  York,  the  Old 
Portuguese  Hebrew  Congregation  in  Philadelphia, 
and  the  Portuguese  Hebrew  Congregation  of  Rich- 
mond, Virginia:  provided,  they  j^rocure  the  neces- 
sary legislation  to  entitle  them  to  hold  said  estate, 
and  to  establish  an  agricultural  school  at  sq^^d  Mon- 
ticello  for  the  children  of  said  societies  who  are 
between  the  ages  of  twelve  and  sixteen  years,  and 
whose  fathers  are  dead,  and  also  similar  children  of 
any  other  denomination,  Hebrew  or  Christian. 

"  I  direct  my  executors  hereinafter  named,  or  such 
of  them  as  shall  qualify,  to  invest  the  funds  arising 
from  said  estate  in  some  safe,  paying  stocks  as  fast 
as  they  accumulate,  and  to  hold  the  whole  of  the 
property  and  estate  hereby  devised  and  bequeathed 
for  said  school,  and  in  their  hands,  iintil  the  proper 
steps  have  been  taken  by  Congress,  or  the  legisla- 


LIMITS    TO   TESTAMENTARY  DISPOSITION.      139 

ture  of  Virginia,  or  the  said  Hebrew  Benevolent 
Congregations,  to  receive  the  same  and  discharge 
said  executors." 

The  court,  in  its  decision,  extensively  reviewed 
preceding  cases,  and  held  that,  at  common  law,  the 
trust  would  be  void  for  want  of  a  certain  donee  or 
beneficiary"  of  the  use  or  trust,  whom  the  law  could 
recognize.  That  it  was  uncertain  which  class  of 
beneficiaries  would  be  the  parties  in  interest,  and  if 
the  class  were  ascertainable,  that  the  individuals 
thereof  were  indeterminate  and  unascertainable, 
and  there  was  no  ascertained  beneficiary  in  whose 
favor  jDcrformance  might  be  enforced. 

The  court  determined  that  the  law  of  charitable 
trusts,  as  existing  and  enforced  in  England,  being 
based  on  the  statute  of  Elizabeth,  was  abrogated 
and  annulled  in  the  State  by  the  act  of  1788,  which 
repealed  the  statute  of  Elizabeth  ;  and  that  the  leg- 
islature by  that  act  intended  to  abrogate  the  entire 
system  of  indefinite  trusts,  which  were  understood 
at  the  time  to  be  supported  by  that  statute  alone, 
as  being  opposed  to  the  general  policy  of  our  gov- 
ernment and  to  the  spirit  of  our  institutions. 

The  court  also  determined  that  the  trustees 
named,  viz..  The  People  of  the  United  States,  or 
the  State  of  Virginia,  were  incompetent  to  take  as 
trustees,  they  being  created  for  certain  determinate 
political  purposes,  and  having  no  other  function  or 
existence.*    Nor  could  the  Hebrew  Congregations, 

*  The  case  of  the  Smithsonian  Institute  was  adduced  as  an  argument 
to  show  that  the  United  States  could  take  by  devise.  In  that  case  Mr. 
Smithson,  an  Englishman  by  birth,  and  a  citizen  of  that  country,  be- 
queathed to  the  United  States  all,  or  nearly  all,  of  his  property,  to  be 


140  CURIOSITIES    OF   WILLS. 

it  was  lield,  so  act,  as  the  trust  was  not  within  tho 
acts  or  province  of  their  incorporation ;  the  one  in 
New  York  could  only  take  jjroperty  for  its  own 
use,  and  the  foreign  corporations  could  not  take 
and  act  as  trustees  of  lands  in  this  State.  The 
court  was  further  of  opinion  that  the  whole  of  the 
peculiar  system  of  English  jurisprudence,  for  sup- 
porting, regulating,  and  enforcing  public  or  charita- 
table  uses,  is  not  the  law  of  the  State  of  New  York 
when  in  conflict  with  statutory  prohibitions  relative 
to  uses  and  trusts.* 

This  case  was  afterwards  followed  by  Bascom  v. 
Albertson,t   holding  and   approving  the   views  of 

applied  to  the  establishment  of  an  institution  for  the  increase  and  diffu- 
sion of  useful  knowledge.  But  Wright,  J.,  said  that  this  furnished  no 
evidence  of  capacity,  simply  as  a  political  organization,  to  take  and  hold 
property  for  charitable  purposes.  That  was  an  English  charity,  and  the 
case  was  determined  by  the  law  of  the  domicile.  It  was  a  charity  under 
the  statute  of  Elizabeth,  and  administered  as  such,  and  took cflfect  only  on 
a  law  of  Congress  organizing  the  institution  in  tho  District  of  Columbia. 

*  In  New  York,  as  in  many  If  not  all  the  States,  the  law  relating  to 
trusts  as  it  formerly  existed  in  England  in  its  intricate  details,  has  been 
abolished,  and  only  express,  active  trusts  are  permitted,  where  the  trustee 
has  some  active  duty  to  perform  in  the  management  of  the  estate.  These 
express  trusts  are  of  four  kinds  :  1.  To  sell  land  for  the  benefit  of  cred- 
itors ;  2.  To  sell,  mortgage,  or  lease  lands,  to  pay  legacies  or  other 
charges;  3.  Where  the  trustee  is  authorized  to  receive  the  rents  and 
profits,  and  apply  them  to  the  use  of  some  person  during  his  life,  or  for 
a  shorter  period ;  4.  To  receiva  rents  and  income  to  accumulate  for  the 
benefit  of  minors,  to  cease  at  majority.  The  same  trusts  only  are  aUowed 
in  California  :  Civil  Code  857.  It  is  therefore  held  that  all  trusts,  for 
any  purpose  whatever,  not  coming  under  one  of  these  four  classes,  are 
void,  as  it  was  apparent  in  the  enumeration  of  these  the  legislature 
intended  to  exclude  all  others.  Hence,  in  the  drawing  of  wills,  attention 
is  most  particularly  needed  to  see  that  no  trusts  are  created  other  than 
those  above. 

1 34  N.  Y.  584.  It  is  not  uncommon  for  persons  to  devise  property  to 
the  United  States  Government.  The  last  case  in  New  York  was  some- 
what singular.  It  is  in  the  case  of  United  States  v.  Eox,  in  52  N.  Y. 
530.    The  testator  there  devised  "  to  the  Government  of  the  United 


LIMITS   TO   TESTiVMENTARY   DISPOSITION.       141 

Levy  V.  Levy,  which  may  now  be  considered  as 
finally  settling  the  law  on  this  head  in  New  York. 

The  statement  of  the  law,  as  decided  in  New 
York,  is  not  in  harmony  with  the  decisions  in  a 
large  majority  of  the  States.  There  is  unquestion- 
ably a  difference  of  opinion  on  this  subject.  The 
gist  of  inquiry  is :  Does  the  law  of  charitable  uses 
exist  in  those  States  where  the  statute  of  Elizabeth 
is  not  in  force,  or  has  been  repealed  ?  Or,  is  the 
law  appertaining  to  this  subject  founded  on  the 
common  law,  or  is  it  the  creation  of  the  statute : 
There  is  no  question  that  the  weight  of  judicial 
opinion  is  greatly  in  favor  of  the  doctrine  that  the 
law  is  not  a  creation  of  the  statute,  but  is  founded 
on  the  common  law  jurisdiction  in  the  Court  of 
Chanceiy,  and  as  such  can  be  administered  by  the 
courts  in  the  absence  of  any  special  statute.* 

The  statute  of  Elizabeth  is  in  force  in  Massachu- 
setts, Pennsylvania,  North  Carolina,  and  Kentucky. 
It  is  not  in  force  in  Maryland,  Virginia,  California, 
and  New  York. 

In  some  of  the  States,  corporations  are  specially 
empowered  by  statute  to  take  a  certain  amount  of 

states  at  Washington,  District  of  Columbia,  for  the  purpose  of  assisting  to 
discharge  the  debt  contracted  by  the  war  for  the  subjugation  of  the  re- 
bellious Coofederato  States."  It  was  held  that  the  government  had  no 
capacity  to  take.  This  case  is  now  appealed  to  the  Federal  Courts,  but 
with  little  prospect  of  reversal. 

*  Burbank  v.  Whitney,  21  Pick.  146 ;  Beall  v.  Fox,  4  Ga.  404 ;  Griffin  ▼. 
Graham,  1  Hawks,  96  ;  7  Vt.  249 ;  Vidal  v.  Gerard,  2  How.  127.  The 
doctrine  was  elaborately  argued  and  examined  in  the  Gerard  Will  Case, 
23  Pemi.  54,  and  it  was  maiotaiaed  that  it  was  founded  on  the  common 
law. 


142  CUEIOSITIBS   OF   WILLS. 

property  by  devise.*  In  New  York,  there  is  a  stat- 
ute, passed  in  1860,  which  prohibits  a  person  hav- 
ing a  husband,  wife,  child,  or  parent,  from  devising 
or  bequeathing  to  any  charitable  or  literary  corpo- 
ration more  than  half  of  his  or  her  estate,  after 
payment  of  debts. 

The  most  frequent  and  dangerous  propensity 
which  law  has  to  check  and  guard  against  in  testa- 
tors is  that  of  perpetuating  in  their  family  for  gen- 
erations vast  property  and  estates.  The  desire  of 
founding  a  family  of  vast  wealth  and  influence  to 
preserve  one's  property  is  not  an  uncommon  one ; 
it  appeals  to  some  of  the  dearest  and  most  j^ersonal 
feelings  of  a  man's  nature  ;  it  is  peculiarly  gratify- 
ing to  pride  and  pomp,  and,  if  not  limited  and 
checked,  would  be  dangerous  to  the  public  welfare, 
as  it  withdraws  from  the  channels  of  trade  and 
enterprise  a  large  extent  of  property.  Hence,  every 
civilized  country  finds  it  necessary  to  define  the 
extent  of  a  man's  control  over  his  property,  how 
long  his  volition  can  regulate  its  use  after  death, 
and  to  what  purposes  it  shall  be  put.  The  cdtamon 
law  permitted  a  control  in  this  respect  which  would 

*  There  are  many  institutions  permitted  by  statute  in  New  York  to 
take  property  by  devise  or  bequest.  By  Laws  1848,  ch.  319,  benevolent, 
charitable,  literary,  scientific,  missionary,  or  Sabbath-school  societies 
can  take  a  devise  or  bequest,  the  clear  annual  income  of  which  shall  not 
exceed  $10,000 ;  but,  to  be  valid,  the  will  must  be  executed  two  months 
before  testator's  death.  By  Laws  1811,  ch.  261,  colleges  and  literary 
incorporated  institutions  are  allowed  to  take  for  certain  purposes.  And, 
by  Laws  18G4,  the  State  can  take  a  devise  for  benefit  and  support  of  com- 
mon schools.  For  these  reasons,  it  is  held  the  law  of  charitable  uses  is 
not  so  much  required  in  New  York ;  and,  by  special  enactment,  the  leg- 
islature will  incorporate  societies  to  take  a  devise  for  pious,  benevolent, 
or  charitable  purposes. 


LIMITS    TO   TESTA3rENTARY   DISPOSITION.       143 

be  entirely  incompatible  with  our  republican  insti- 
tutions and  equality  of  our  citizens. 

Under  that  law,  a  man  had  the  power  to  tie  up 
his  property  and  suspend  the  power  of  alienation, 
as  it  was  termed,  for  any  number  of  lives  in  being, 
and  twenty-one  years  and  a  fraction  afterwards.  He 
could  order  the  accumulation  of  the  rents,  income, 
or  profits  for  a  similar  period.  The  case  which  first 
drew  attention  to  the  danger  of  such  a  power  was 
one  of  the  most  famous  in  English  law,  and  one 
that  has  since  been  a  warning  and  an  incentive  to 
legislation  both  here  and  in  England.  Perhaps,  for 
the  amount  involved,  the  tediousness  and  length  of 
the  litigation,  and  the  singularity  of  the  provisions, 
there  has  never  been  a  more  famous  case  than  that 
of  Thellusson  v.  Woodford,*  tried  before  Lord  Chan- 
cellor Loughborough,  in  the  year  1798.  The  case 
afforded  a  remarkable  instance  of  the  unnatural 
meanness  and  ostentation  of  the  testator,  in  depriv- 
ing his  immediate  descendants  of  their  just  share  of 
his  fortune,  not  to  found  any  noble  charity,  but  that 
his  fortune  might  accumulate  in  the  hands  of  trust- 
ees, for  the  miserable  satisfaction  of  enjoying  in 
anticipation  the  wealth  and  aggrandizement  of  a 
distant  posterity  who  should  bear  his  name. 

Peter  Thellusson  was  born  at  Paris,  of  Swiss  par- 
entage, his  father  being  a  minister  from  Geneva  to  the 
French  court.  He  settled  in  London  as  a  merchant  at 
an  early  age,  was  naturalized,  and,  on  the  foundation 
of  a  fortune  of  £10,000,  raised  the  princely  possessions 
which  afterwards  became  the  subject  of  litigation .    It 

*  4  Ves.  227. 


144  CTTRIOSITIES    OF   WILLS. 

is  said  that  he  "was  generally  respected,  and,  thougli 
a  severe  economist,  lived  in  a  style  suitable  to  his 
wealth.  His  three  sons  were  all  members  of  Par- 
liament. In  the  sixty-first  year  of  his  age,  being  at 
the  time  in  perfect  health  and  legal  sanity,  he  made 
and  executed  his  last  will,  bearing  date  April  2d, 

1796,  and  thereby  disposed  of  his  property  upon 
trust  during  the  natural  lives  of  his  three  sons,  and 
of  the  sons  of  each  of  these  then  in  being,  and  of 
any  such  issue  as  any  of  his  grandsons  might  have 
as  should  be  living  at  the  time  of  his  decease.  Dur- 
ing the  lives  of  the  survivors  or  survivor  of  these 
persons  mentioned,  the  trustees  were  to  collect  and 
receive  the  rents  and  invest  them,  and,  upon  the 
decease  of  the  last  survivor,  all  the  accumulated 
estates  should  be  divided  into  three  lots,  of  equal 
value,  and  settled  upon  the  eldest  male  lineal  de- 
scendant then  living  of  each  of  his  three  sons ;  and, 
if  there  should  be  a  failure  of  male  descendants  of 
two  of  his  said  three  sons,  the  sole  male  lineal  de- 
scendant of  the  testator  should  become  entitled  to 
the  whole  three  lots,  consolidated  into  one  huge 
mass  of  landed  property.  The  property  was  thus 
tied  up  in  the  hands  of  trustees,  and  kept  from 
enjoyment  for  three  generations.  Shortly  after 
executing  this   extraordinary   will,  on  21st  July, 

1797,  Mr.  Thelusson  died.  The  money  which  the 
will  sought  to  accumulate  was  estimated  at  £600,000, 
An  accountant  of  that  time  calculated  the  accumu- 
lation— limiting  it  to  seventy-five  years,  the  shortest 
possible  period  during  which  the  property  would 
be  tied  up — at  £27jl82,000,  an  immense  sum,  but 


LIMITS   TO   TESTAMENTARY   DISPOSITION.      145 

which  he  deemed  would  be  considerably  less  than 
the  sum  it  would  be  likely  to  reach  when  the  im- 
provement of  money  at  a  higher  rate  and  the  length- 
ened duration  of  the  last  survivor  were  taken  into 
account.  It  was  estimated,  by  one  of  the  counsel  in 
the  case,  that  if  there  were  three  descendants  to 
take,  each  would  have  an  income  of  £650,000  a 
year;  if  only  one,  he  would  have  an  income  of 
£1,900,000  a  year,  more  than  double  the  revenue  of 
the  king's  civil  list,  and  surpassing  the  largest  terri- 
torial fortune  then  known  in  Europe.  Chancellor 
Kent,  regarding  it  from  his  time,  has  said  that  if 
the  limitation  should  extend  to  upwards  of  one  hun- 
dred years,  as  it  might,  the  property  will  amount  to 
upwards  of  one  himdred  millions  sterling. 

The  children  brought  an  action  to  have  the  will 
set  aside,  but  the  court  decided  against  them,  and 
gave  judgment  confirming  the  trusts.  The  case, 
attracted  wide  and  deep  attention  from  the  mag- 
nitude of  the  fortune  sought  to  be  reared,  and  from 
the  important  principle  of  public  policy  involved. 
It  was  argued  on  both  sides  by  the  most  eminent 
counsel  at  the  bar,  but  nevertheless  the  Chancellor 
Avas  compelled  to  hold  the  will  valid,  much,  it  is 
said,  against  his  inclination.  Next  year,  he  was  in- 
strumental in  getting  Statute  39  and  40  Geo.  Ill 
passed,  restraining  dispositions  by  way  of  accumula- 
tion to  the  life  of  the  grantor,  or  twenty-one  years 
after  his  decease,  or  the  minority  of  any  party 
living  at  the  time  of  his  decease.* 

*  In  case  the  trust  exceeds  this  term,  it  is  void  in  toto,  and  not  merely 
pro  tanlo:   Griffiths  v.  Vere,  1  Ves.  136, 10  Penn.  St.  326. 
C.  OJ  W.— 13. 


146  CURIOSITIES   OF   "WILLS. 

The  property  was  accordingly  left  to  accumulate ; 
but  the  ambitious  and  vain  visions  of  the  testator 
and  the  alarm  of  the  public  were  destined  to  dis- 
appointment. The  structure  which  threatened  even 
to  overshadow  the  land  in  its  ascending  greatness 
has  not  risen  to  a  disproportionate  size.  The  oper- 
ation of  the  trusts  has  proved  practically  a  failure, 
as  the  accumulated  mass  of  wealth  is  likely  to  fall 
far  short  of  the  amount  which  fanciful  calculators 
had  predicted.  It  has  shared  the  inevitable  fate  of 
all  such  vast  estates  that  get  into  the  grist-mill  of 
the  lawyers.  The  litigation  has  been  so  expensive, 
that  what  with  fees  of  lawyers,  fees  of  courts,  com- 
missions to  trustees,  and  the  expense  of  manage- 
ment, the  corpus  of  the  estate  has  been  pretty  well 
eaten  up.  The  expenses  of  management  from 
January,  1816,  to  1833,  exceeded  £122,700.  The 
only  increase  in  respect  of  income  was  £8,356,  and 
an  accumulation  of  capital  of  £326,364. 

The  extent  of  time  to  which  property  is  allowed 
to  accumulate  is  very  carefully  and  strictly  defined 
in  our  statutes.  It  is  generally  only  during  a 
person's  minority,  as  in  New  York  and  California, 
and  the  same  is  believed  to  be  the  rule  in  genei'al.* 

The  power  of  suspending  the  alienation  of  prop- 
erty by  a  devise  is  limited  to  lives  in  being  in  some 
States,  or  in  others  to  two  lives  in  being,!  ^'^^  "o 

*  A  direction  to  accumulate  aU  the  testator's  estate  for  fifteen  years  by 
investment  and  reinvestment  in  bonds  is  valid  in  Illinois.  Bboads  v. 
Rboads,  43  III.  239. 

But  in  New  York  an  accumulation  for  three  years,  and  also  ten  years, 
•was  held  invalid  :  4  Sandf .  442  ;  7  Barb.  590. 

t  In  New  York  it  is  two  lives  ;  in  California,  any  lives  in  being :  Civil 
Code,  716. 


LIMITS   TO   TESTAMENTARY    DISPOSITION.       147 

matter  how  short  may  be  the  duration,  the  sus- 
pension will  be  invalid  if  it  is  not  made  to  depend 
on  life  as  the  condition  of  the  limitation.*  On 
this  account,  some  very  worthy  and  benevolent 
schemes  of  testators  have  failed. 

The  two  lives  must  be  designated.  This  may  be 
done  either  by  naming  two  persons  in  particular^ 
or  else  by  describing  a  class  of  persons,  and  bound- 
ing the  suspense  of  alienation  by  the  lives  of  the 
two  first  who  shall  die  out  of  the  class.  The  limit- 
ation may  be  restricted  for  a  shorter  period  than 
two  lives — it  may  be  for  a  single  life.  The  estate 
may  also  be  limited  so  as  to  depend  on  some  event 
besides  life,  provided  it  must  vest  within  two  lives; 
as  an  estate  to  A  for  ten  years,  if  B  and  C,  or  either 
of  them,  shall  so  long  live ;  here,  the  estate  may  de- 
termine either  by  the  lapse  of  the  ten  years,  or  by 
the  death  of  B  and  C ;  but  it  can  in  no  event  ex- 
ceed two  designated  lives.  So,  an  estate  during 
minority,  widowhood,  or  other  stage  of  existence, 
through  which  two  individuals  may  pass,  would  be 
good,  because  it  could  not  by  any  possibility  extend 
beyond  two  designated  lives.f 

*  Schettler  v.  Smith,  41  N.  Y.  328. 

t  The  maximom  period  during  which  alienation  may  be  suspended 
may,  in  one  instance,  under  the  New  York  Btatutcs,  and  those  of  a  great 
many  other  States,  be  suspended  for  two  lives  in  being,  and  twenty-one 
years  and  a  fraction  afterwards,  in  certain  cases  of  minority.  For  exam- 
ple, an  estate  to  A  for  Kfe,  remainder  to  B  for  life,  remainder  to  his 
children  in  fee,  but  in  case  such  children  shall  die  under  the  age  of 
twenty-one  years,  then  to  D  in  fee.  Here,  it  will  be  observed,  the  owner- 
ship may  bo  legally  suspended  for  the  lives  of  A  and  B,  and  the  actual 
infancy  of  B's  children ;  but  in  no  event  can  such  suspension  exceed 
that  length  of  time  before  the  remainder  becomes  vested.  If  one  of  the 
children  reach  twenty-one,  D's  remainder  is  cut  oflT.  In  the  example  just 
given,  suppose  the  children  of  B  die  before  attaining  twenty-one,  and 


148  CURIOSITIES   OF   WILLS. 

These  teclinical  rules  have  rendered  many  a  noble 
scheme  abortive,  and  frustrated  the  benevolent  and 
reformatory  intentions  of  many  a  testator. 

In  the  following  instance,  a  testator's  paternal 
solicitude  for  the  reform  of  a  wayward  son,  and  his 
disapproval  of  his  mode  of  life,  were  emphatically 
expressed;  and  an  unfortunate  oversight  of  this 
inflexible  rule  hindered  the  restraint  the  parent 
thought  to  place  on  his  son  after  his  decease.  The 
father,  however,  with  the  usual  confidence  of  a  par- 
ent, had  not  abandoned  all  hope  as  to  his  ultimate 
recovery,  for  he  thought  fit  to  make  him  one  of  his 
executors,  and  thus  placed  him  in  the  rather  novel 
position  of  being  a  censor  of  his  own  conduct. 

In  the  seventh  clause  of  his  will,  after  certain 
clear  devises  and  bequests  to  other  persons,  was  this 
recital  and  provision,  viz :  "  Whereas,  my  son  P, 
to  whom  sundiy  bequests  are  made  in  the  following 
will,  has  unfortunately  contracted  habits  of  inebri- 
ation, and  in  consequence  of  which,  I  fear  he  would 
squander  or  misuse  the  bequests  to  him  made,  I  do, 
therefore,  annul  and  make  void  this  will  as  to  him, 
unless  he  reforms  and  continues  a  sober,  industrious, 
and  moral  man,  for  the  space  of  two  years  after  my 
decease,  giving  to  my  executors  satisfactory  evidence 

that  B,  at  his  death,  leaves  his  wife  enceinte,  there  would  then  be  a  sus- 
pension of  alienation  for  a  few  months  more  than  twenty-one  years. 

The  extent  to  which  variation  from  the  ordinary  term  of  gestation  may 
tate  place  in  women,  whether  the  birth  be  prematuru  or  protracted,  is  one 
of  the  difficult  problems  involved  in  medical  jurisprudence.  On  this  sub- 
ject the  highest  medical  authorities  are  at  issue ;  some  adhering  closely  to 
the  regular  period  of  forty  weeks  as  the  extreme  term;  while  others  ex- 
tend their  indulgence  even  to  the  utmost  verge  of  eleven  calendar  months. 
See  Long  v.  Blackall,  7  Term  K.  104 ;  Cadell  v.  Palmer,  1  01.  &  Finn.  372. 


LIMITS   TO    TESTAMENTARY   DISPOSITION.       149 

and  assurance  of  a  thorough  reformation.  And, 
therefore,  it  is  my  will,  that  the  property  so  "willed 
to  him  should  be  held  in  trust  for  him,  not  to  ex- 
ceed three  years  after  my  decease ;  and  if  within 
that  time  such  reformation  does  not  take  place,  I 
desire  my  said  executors  to  divide  his  portion  among 
such  of  my  heirs  as  may  seem  to  them  most  to  need 
and  deserve  the  same."* 

It  was  held  that  this  provision  of  the  will  was 
void,  both  as  a  trust,  and  as  a  power  in  trust ;  and 
that  the  son  took  the  bequest  notwithstanding. 

The  court  deemed  it  "  an  unusual  and  extraordi- 
nary provision" ;  and  as  the  period  of  suspension 
was  measured  by  time  alone,  and  not  by  life,  this 
of  itself  rendered  the  provision  nugatory. 

It  has  been  decided  that  if  a  bequest  be  made  to 
certain  trustees,  to  hold  during  the  life  of  two  per- 
sons designated,  or  until  the  legislature  incorpor- 
ate a  hospital  during  the  lifetime  of  the  said 
persons,  it  is  good.f  It  was  in  this  way  the  will  of 
Mr.  Roosevelt  was  drawn,  through  which  the 
Roosevelt  Hospital  in  New  York  was  founded. 
He  bequeathed  the  residue  of  his  estate,  after  other 
bequests,  to  nine  trustees,  five  of  whom  were  pres- 
idents of  certain  charitable  institutions,  for  the 
establishment  of  an  hospital  for  the  reception  and 
relief  of  sick  and  diseased  persons,  and  directed 
them  to  apply  to  the  legislature  for  a  charter  to 
incorporate  the  same,  and  in  case  the  legislature 
should  refuse  to  grant  this  within  two  years  next 

*  Moore  v.  Moore,  47  Barb.  257. 

t  Burrill  V.  Boardinan,  43  N.  Y.  254. 


150  CURIOSITIES   OF  WILLS. 

after  his  death,  provided  two  lives  named  in  his  will 
should  continue  so  long^  then  the  trustees  were  to 
pay  over  the  same  to  the  United  States  for  a 
simQar  purpose. 

It  was  heki  that  this  provision  did  not  violate 
the  statute  of  perpetuities,  but  that  the  corporation 
could  take  only  in  case  the  charter  was  gi*anted 
within  the  two  lives  named.  There  was  no  need 
to  consider  the  validity  of  the  devise  to  the  United 
States.  The  charter  was  granted  in  February, 
1864,  and  now  the  hospital  stands  conspicuous 
among  the  charities  of  New  York  city. 

An  oversight  in  the  observance  of  this  rule 
against  perpetuities  caused  the  failure  of  a  grand 
and  meritorious  scheme  conceived  by  the  late  Mr. 
Rose  of  New  York.  He  died  in  1860,  and  left  a 
large  amount  of  property — estimated  at  two  mil- 
lions of  dollars^ — to  found  an  institution  called  the 
"  Rose  Beneficent  Association,"  *  whose  object  it 
was  to  educate  and  train  waifs  picked  up  on  the 
streets,  and  make  them  useful  citizens.  He  gave 
the  bequests  upon  the  contingency  of  raising  $300,- 
000  from  other  sources  within  five  years.  If  that 
sum  was  not  so  raised,  the  estate  was  given  to 
other  charitable  beneficiaries.  The  utmost  limit  of 
the  suspension  was  five  years,  but  it  was  not  cir- 
cumscribed by  lives  as  the  Statute  of  Perpetuities 
requires,  and  it  was  adjudged  to  be  void.  It 
should  be  stated  as  a  warning  that  this  will  of  Mr. 
Rose  was  drawn  by  himself. 

*  Kose  V.  Rose,  4  Abb.  Ct.  ApiJ.,  Dec,  108. 


LIMITS    TO    TESTAMENTARY   DISPOSITION.       151 

The  case  occupied  a  long  time  in  litigation,  and 
the  subject  of  charitable  bequests  was  most  ex- 
haustively examined.* 

•  The  argument  of  Prof.  Dwight,  one  of  the  counsel,  in  two  volumes, 
presents  a  marvelous  and  most  scholarly  amount  of  research  upon  the 
law  of  charitable  uses,  from  the  earliest  times. 


CHAPTER  VI. 

Revocation  of  "Wills. 

It  is  one  of  the  well-understood  qualities  of  a 
will,  at  the  present  time,  that  it  is  revocable  daring 
the  testator's  lifetime.  It  was  shown,  in  a  former 
part  of  this  work,  that  this  quality  did  not  in  early- 
times  attach  to  a  will ;  that  a  will,  at  first,  was  in 
the  nature  of  an  executed  contract ;  a  conveyance, 
in  fact,  and  irrevocable.*  However,  as  a  will  has  no 
effect  until  death,  it  necessarily  follows  that  a  per- 
son has  full  control  of  the  subject-matter,  and  can 
change  his  mind  as  he  pleases  regarding  its  disposi- 
tion so  long  as  he  lives.  This  is  now  accei^ted  as  a 
postulate  in  the  law  of  wills.f  The  only  inquiry, 
therefore,  will  be  as  to  what  acts  or  occurrences 
shall  be  deemed  sufficient  to  revoke  a  will  previously 
made. 

There  are  two  modes  in  which  a  will  may  be  re- 
voked :  First,  it  may  be  revoked  by  the  happening 
of  some  events  subsequent  to  the  making  as,  in  the 
judgment  of  law,  will  amount  to  a  revocation.   We 

*  See  page  31. 

t  Swinburne,  Part  7,  Sec.  14,  says:  "  Concerning  the  making  of  a  latter 
testament,  su  large  and  ample  is  the  liberty  of  making  testaments  that 
a  man  may,  as  oft  as  he  will,  make  a  new  testament,  even  until  his 
last  breath  ;  neither  is  there  any  cautel  under  the  sun  to  prevent  this 
liberty ;  but  no  man  can  die  with  two  testaments,  and  therefore  the  last 
and  newest  is  of  force  ;  so  that,  if  there  were  a  thousand  testaments,  the 
last  of  aU  is  the  best  of  all,  and  makes  void  the  former." 

1152] 


REVOCATION   OF    WILLS.  153 

may  term  tbis  an  implied  revocation.  Secondly^  it 
may  be  revoked  by  a  certain  deliberate  act  of  the 
maker,  intending  to  cancel  a  previous  will,  or  -with 
animo  revocandi,  as  the  legal  phrase  is. 

The  events  which  would  operate  to  produce  an  im- 
plied revocation  of  a  will  were  formerly  a  subject  of 
wide  and  constant  discussion.  The  courts  in  England, 
and  until  lately  in  this  country,  occupied  themselves 
very  frequently  in  discussing  this  subject  of  implied 
revocation,  and,  for  a  long  time,  there  was  no  gen- 
eral agreement  on  the  precise  events  that  would,  in 
the  judgment  of  law,  amount  to  a  revocation.  At 
an  early  period  in  the  English  law,  it  was  determ- 
ined that  the  marriage  of  a  feme  sole  was  suffi- 
cient to  revoke  a  wUl  made  by  her  previous  to  her 
marriage.  It  was  expressed  thus,  in  the  quaint  lan- 
guage of  the  time:  "It  was  adjudged,  on  great 
deliberation,  that  the  taking  of  a  husband,  and  the 
coverture  at  the  time  of  her  death,  was  a  counter- 
mand of  the  will."*  This  enunciation  of  the  law 
has  ever  since  prevailed  as  a  principle  in  the  law  of 
wills.  But  a  similar  marriage  in  the  case  of  a  man 
did  not  have  the  same  effect.  The  courts  were  at 
first  not  agreed  as  to  whether  the  birth  of  a  child 
after  the  making  of  a  will  would  be  sufficient  to 
effect  a  revocation.  In  one  case,  it  was  decided 
that  this  event  alone  did  not  amount  to  a  revoca- 
tion ;t  but  in  another  case,  where  there  were  /our 
children  born  subsequently  to  the  making  of  the 
will,  this,  combined  with  other  circumstances,  was 
held  to  be  a  revocation.^:    It  came  to  pass  that  the 

*  4  Co.  Rep.  60.  t  Doe  v.  Barford,  i  Man.  &  8. 16. 

t  Johnston  V.  Johnston,  1  Phillim.  447. 


154  CURIOSITIES    OF    WILLS. 

courts  became  finally  agreed  on  the  question  that 
marriage,  together  with  the  birth  of  issue,  was  suffi- 
cient to  effect  a  revocation  of  a  will.* 

In  the  application  of  this  rule,  cases  of  great  hard- 
ship have  sometimes  occurred ;  but  it  has  been 
steadily  adhered  to,  even  under  circumstances  in 
regard  to  real  estate,  at  least ;  as  where  the  testator 
left  his  wife  enceinte  without  knowing  it,  as  was 
the  case  in  Doe  v.  Barford,  above,  where  Lord  El- 
lenborough  held  that  the  birth  of  a  child  alone,  even 
under  these  circumstances,  was  not  sufficient  to  re- 
voke the  will  which  was  made  after  marriage.  He 
said:  "Marriage,  indeed,  and  the  having  of  chil- 
dren, where  both  these  circumstances  have  occurred, 
has  been  deemed  a  presumptive  revocation ;  but  it 
has  not  been  shown  that  either  of  them  singly  is 
sufficient.  I  remember  a  case  some  years  ago  of  a 
sailor  who  made  his  will  in  favor  of  a  woman  with 
whom  he  cohabited,  and  afterwards  went  to  the 
West  Indies,  and  married  a  woman  of  considerable 
substance;  and  it  was  held,  notwithstanding  the 
hardship  of  the  case,  that  the  will  swept  away 
from  the  widow  every  shilling  of  the  property,  for 
the  birth  of  a  child  must  necessarily  concur  to  con- 
stitute an  implied  revocation.  In  Doe  v.  Lanca- 
shire, 5  T.  R.  49,  it  was  adjudged  that  marriage  and 
the  pregnancy  of  the  wife,  with  the  knowledge  of 
the  husband,  and  the  subsequent  birth  of  a  posthu- 
mous child,  came  within  the  rule,  the  same  as  if  the 
child  had  been  born  during  the  parent's  life." 

This  subject  was  elaborately  examined  by  Chan- 

•  Wellington  v.  Wellington,  4  Burr.  21C5. 


REVOCATION   OF   WILLS.  155 

cellor  Kent,  in  the  case  of  Brush  v.  Wilkins,*  where 
the  authorities  from  the  earliest  times  were  quoted 
and  examined,  and  the  same  conclusion  reached. 

This  inquiry  is  not  of  much  i:)ractical  importance 
now,  either  here  or  in  England,  for  statutory  enact- 
ments have  laid  down  the  law  precisely  and  satis- 
factorily as  to  what  circumstances  shall  be  deemed 
sufficient  to  produce  the  revocation  of  a  will.  And 
this  is  very  desirable,  since  much  uncertainty  and 
discussion  is  thereby  avoided,  and  the  devolution  of 
property  exactly  determined.!  There  is  scarcely  a 
State  we  know  of  where  statutes  have  not  been 
passed,  setting  the  matter  at  rest,  and  fixing  the 
law  on  the  subject. 

By  the  recent  English  statute,  wills  are  held  abso- 
lutely revoked  by  the  subsequent  marriage  of  the 
testator,  whether  made  by  a  man  or  woman,  unless 
such  %vill  be  made  in  execution  of  certain  powers ; 
and  it  is  further  provided  that  no  will  shall  be  re- 
voked, by  any  presumption  of  intention,  on  the 
ground  of  an  alteration  of  circumstances. 

In  the  statutes  of  the  different  States  there  is  this 
difference :  In  some,  the  birth  of  a  child  after 
making  a  will,  where  such  child  is  unprovided  for, 
will  work  a  revocation ;  while  in  others,  it  will  only 

*  4  Jolms.  Ch.  506.  Of  course,  this  rule  was  only  good  where  the  issue 
of  the  marriage  were  otherwise  unprovided  for,  or  had  no  means  of 
maintenance. 

t  The  law  respecting  implied  revocations  was  a  fruitful  source  of  diffl- 
cult  and  expensive  litigation,  and  often  defeated  the  intention  of  testa- 
tors, instead  of  carrying  it  into  effect.  Lord  Mansfield  has  said  that  some 
of  the  decisions  on  this  head  had  brought  "  a  scandal  on  the  law" ;  and, 
on  another  occasion,  he  remarked  "  that  all  revocations  not  agreeable  to 
the  intention  of  the  testator  are  founded  on  artificial  and  absurd  reason- 
ing."   3  Burr.  491. 


156  CURIOSITIES    OF   WILLS. 

revoke  it  2^^o  tanto^  that  is,  so  as  to  allow  the  child 
to  have  the  same  share  as  if  the  parent  died  intestate. 

In  Ohio,  Indiana,  Illinois,  and  Connecticut,  the 
birth  of  a  child  avoids  the  will  in  toto.* 

By  the  statute  laws  of  Maine,  Vermont,  New 
Hampshire,  Massachusetts,  New  York,  New  Jersey, 
Pennsylvania,  Delaware,  and  California,  children 
born  after  the  making  of  the  will  inherit  as  if  the 
parent  died  intestate,  unless  the  will  comprises  some 
provision  for  them,  or  they  are  particularly  referred 
to  in  it.     The  will  is  thus  revoked  j)^o  tanto.lf 

In  Virginia  and  Kentucky,  the  birth  of  a  child 
after  the  will,  if  there  were  none  previously,  re- 
vokes the  will,  unless  the  child  dies  unmarried  or 
an  infant. t 

The  statute  law  of  some  States  goes  further,  and 
entitles  not  only  children  but  their  issue  to  claim 
portion  of  testator's  estate,  if  such  children  were 
unprovided  for,  and  unmentioned  in  the  will.  This 
is  the  case  in  the  California  code,§  and  in  Maine, 
New  Hampshire,!  Rhode  Island,  and  Massachusetts. 

By  the  New  York  revised  statutes,  if  a  will  dis- 
poses of  the  whole  estate,  marriage  and  the  birth 
of  a  child  revoke  the  will,  if  either  the  wife  or 
child  survive  the  testator.^T  Parol  evidence  is  not 
admissible  to  rebut  this  presumption.  Whei'ever 
the  question  has  arisen,  it  has  generally  been  held, 

*  Ash  V.  Ash,  9  Ohio,  383 ;  Stat.  Ohio,  (1831)  p.  243 ;  Stat.  Ind.  1821 ;  Stat. 
111.  1829 ;  G.  Laws,  Conn.  p.  370,  last  edition, 
t  i  Kent,  525  ;  Cal.  Civ.  Code,  1306. 
t  i  Kent,  526. 
§  Sec.  1307. 

II  Gage  V.  Gage,  9  Foster,  533. 
12Rev.  Stat.  64. 


EE VOCATION    OF    WILLS.  157 

even  in  the  States  where  by  statute  children  omit- 
ted in  the  will  of  the  parent  are  entitled  to  the 
same  share  of  his  estate  as  if  he  had  died  intestate, 
that  marriage  and  the  birth  of  issue,  after  the  mak- 
ing of  a  will,  do  amount  to  an  implied  revocation 
of  the  will.* 

In  many  of  the  States,  marriage  alone,  after  mak- 
ing the  will,  amounts  to  a  revocation.  In  Virginia, 
it  is  revoked  by  marriage  ;t  also,  in  West  Virginia ; 
so  in  California,  imless  a  provision  be  made  for  the 
wif  e4  In  others,  it  only  revokes  the  will  pro  tanto, 
as  in  Pennsylvania  and  Delaware.§  In  the  State 
of  Illinois,  where  the  husband  and  wife  are  made 
heirs  to  each  other,  marriage  by  the  testator  after 
making  his  will,  wherein  no  provision  in  contem- 
23lation  of  such  new  relation  exists,  amounts  to  a 
revocation.il  The  marriage  of  a  woman  after  mak- 
ing her  will,  will  produce  a  revocation  in  general. 
It  is  so  in  New  York  and  California  ;ir  and  in  Cali- 
fornia it  is  not  revived  by  death  of  the  husband. 
This  provision  is  in  harmony  with  the  early  cases 
in  England.** 

It  must  not  be  inferred  from  the  previous  state- 
ment that  a  testator  has  no  power  to  disinherit  or 
cut  off  a  child.  The  law  does  not  withhold  this 
power ;  it  only  presumes,  by  the  omission  to  men- 

*Redfleld,I,  29S. 

tEev.  Stat.  1849,  Ch.  122 

}  Civil  Code,  1290.     So  in  Rhode  Island,  Eev.  Btat.  Ch.  154. 

§  Tomliusou  v.  Tomlinson,  1  Ashm.  224. 

il  Tyler  v.  Tyler,  19  111.  151. 

IT  2  N.  Y.  Rev.  Stat.  64 ;  Civil  Code,  1299. 

**  Cotter  V.  Layer,  2  P.  Wms.  C23. 

C.  OP  W.— 14. 


158  CURIOSITIES  or  wills. 

tion  the  name  of  a  child  in  a  will,  that  the  claim  of 
that  child  was  overlooked  by  the  testator,  and  the 
court,  exercising  its  equitable  power,  interferes  on 
behalf  of  such  child  to  see  it  gets  its  due  share  of 
the  property.  But  where  the  intention  is  express- 
ed, and  much  more  so  where  a  reason  is  given,  for 
cutting  off  a  child  from  a  participation  in  a  testa- 
tor's jjroiDcrty,  the  courts  cannot  interfere  in  behalf 
of  such  disinherited  child,  unless  on  some  imjiuta- 
tion  of  insanity  or  undue  influence. 

Another,  and  a  more  usual  mode  in  which  a  will 
-may  be  revoked,  is  by  an  express  deliberate  act  of 
the  testator.  This  may  be  done  by  a  subsequent 
testamentary  document,  or  by  some  j^hysical  de- 
struction or  cancelation  of  the  will.  A  very  com- 
mon phrase  used  in  a  will  is :  "  And  I  hereby  re- 
voke all  former  and  other  wills  and  testamentary 
dispositions  by  me  at  any  time  heretofore  made." 
However,  the  insertion  of  a  clause  like  this  is  not 
of  much  importance,  as  a  will  professing  to  dispose 
of  the  whole  of  a  testator's  property  necessarily 
displaces  and  supersedes  all  antecedent  testament- 
ary instruments.*  Such  a  clause  might  be  useful 
in  those  instances  in  which  the  intention  to  dis- 
pose of  the  entire  estate  was  not  so  clearly 
manifested  as  to  preclude  attempts  to  adopt,  wholly 
or  partially,  the  contents  of  former  wills  as  part  of 
the  testator's  disposition ;  since  a  will  may  be  com- 
posed  of  several  papers   of  different  dates,  each 

*  In  re  Fisher,  4  Wi&  254  ;  Simmons  v.  Simmons,  26  Barb.  C8  ;  Smith 
V.  McChesney,  15  N.  J.  Ch.  359. 


REVOCATION   OF   WILLS.  159 

professing  to  bo  such  when  they   are   capable  of 
standing  together.* 

Mere  jjroof  of  the  execution  of  a  subsequent  will, 
therefore,  is  not  sufficient  to  invalidate  a  prior  will. 
There  must  be  proof  of  a  clause  of  revocation,  or 
there  must  be  plainly  contrary  or  inconsistent  pro- 
visions.! And  where  the  contents  of  the  last  will 
cannot  be  ascertained,  it  is  not  a  revocation  of  the 
former  will.  This  was  decided  by  the  Court  of 
King's  Bench  in  England,  more  than  one  hundred 
and  fifty  years  ago,  in  the  case  of  Hutchins  v. 
Bassett ;  t  and  that  decision  was  subsequently 
affirmed  ujDon  a  writ  of  error  in  the  House  of 
Lords.  In  the  subsequent  case  of  Harwood  v. 
Goodright,§  which  came  before  the  Court  of  King's 
Bench  in  1774,  it  was  held  that  a  former  will  was 
not  revoked  by  a  subsequent  one,  the  contents  of 
which  could  not  bo  ascertained ;  although  it  was 
found  by  a  special  verdict  that  the  disposition 
which  the  testator  made  of  his  property  by  the  last 
will  was  different  from  that  made  by  the  first  will, 
but  in  what  particulars  the  jurors  could  not  ascer- 
tain. This  case  also  was  carried  to  the  House  of 
Lords  upon  a  writ  of  error,  and  the  judgment  was 
affirmed.  As  these  two  decisions  of  the  court  of 
dernier  resort  in  England  were  previous  to  the  Rev- 
olution, they  conclusively  settle  the  law  on  this 
subject  here. II 

*  Cainpl)en  v.  Logan,  2  Bradf .  90. 
t  Outto  V.  Gilbert,  9  Moore,  P.  C.  0.  131. 
t  Mod.  203. 
§  1  Cowp.  87. 

II  Nelson  v.  McGlffert,  3  Barb.  Ch,  162.    In  some  States  this  Is  settled 
by  statute.  Thus,  in  California,  an  antecedent  will  is  not  revived  by  the 


160  CURIOSITIES    OF   WILLS. 

Again,  where  there  are  several  codicils  or  other 
testamentary  j^apers  of  different  dates,  it  is  a  ques- 
tion of  intention  njjon  all  the  circumstances  of  the 
case,  which  and  how  far  either  is  a  revocation  of 
another,  or  whether  the  dispositions  of  the  latter 
are  to  be  considered  as  additional  and  cumulative 
to  those  of  the  prior.  Parol  evidence,  however,  is 
not  to  be  admitted  in  order  to  investigate  the 
animus  with  which  the  act  was  done,  unless  there 
is  such  doubt  and  ambiguity,  on  the  face  of  the 
papers,  as  requires  the  aid  of  extrinsic  evidence  to 
explain  it.* 

In  a  late  case,t  the  subject  of  receiving  parol  ev- 
idence in  regard  to  the  fact  and  intent  of  the  revo- 
cation of  wills,  is  very  carefully  examined,  and  the 
principle  declared,  that  where  the  testator  executed 
a  will,  and  subsequently  executed  another,  which 
he  took  away  with  him,  and  Avhich  on  his  decease 
could  not  be  found,  the  earlier  one  being  found, 
that  the  solicitor  who  drew  the  Avill,  or  any  other 
witness  familiar  with  its  contents,  might  give  evi- 
dence thereof ;  and  it  appearing  that  the  provisions 
of  the  later  one  were  inconsistent  with  those  of 
the  former,  it  was  held  to  amount  to  a  revocation. 
The  practice,  in  the  American  courts,  of  receiving 
parol  evidence  of  the  contents  of  a  lost  Avill,  seems 
to  be  universal,  and  without  question,  notwithstand- 

revocation  of  a  subsequent  •wUl  unless  an  intention  appear  :  Civil  Code, 
1297.    The  same  in  New  York  :  2  Rev.  Stat.  66. 

*  Wms.  ExTS.  136  and  cases  cited.  The  general  effect  of  a  subsequent 
will  in  revoking  one  of  an  earlier  date,  by  reason  of  its  inconsistent  pro- 
visions, is  very  extensively  discussed  in  the  late  and  important  case  of 
Colvin  V.  Warford,  20  Md.  357. 

t  Brown  V.  Brown,  8  El.  &  Bl.  876. 


REVOCATION   OP   WILLS.  161 

ing  the  stringent  statutory  requirements  in  regard 
to  the  mode  of  executing  wills.*  The  evidence 
must  come  from  witnesses  who  have  read  the  will, 
and  whose  recollection  of  its  contents  is  trustwoi-- 
thy.t  But  in  cases  of  fraud,  more  indulgence  is  al- 
lowed to  the  proof,  and  in  Jones  v.  Murphy,t  the 
court  said :  "  It  is  better,  surely,  that  a  person  should 
die  intestate  than  that  the  spoliator  should  be  re- 
warded for  his  villainy."  The  English  courts  do  not 
grant  the  same  indulgence  to  admit  alleged  lost 
wills  to  probate.  In  a  late  case,  where  the  contents 
of  the  will  were  propounded  for  probate  after  a 
delay  of  seven  years,  and  no  sufficient  explanation 
given  of  the  manner  or  cause  of  the  loss,  and 
when  no  draft  of  the  will  could  be  produced, 
but  only  oral  proof  of  its  contents,  due  execution, 
and  that  it  could  not  have  been  revoked,  probate 
was  denied.§ 

The  question  as  to  what  extent  a  codicil  shall 
control  the  provisions  in  the  will  is  not  always  easy 
of  solution.  Each  case  depends  almost  exclusively 
upon  its  own  peculiar  circumstances,  and  will  not, 
therefore,  be  much  guide  to  others,  unless  the  facts 
are  very  similar.  But  the  general  rule  of  construc- 
tion is  that  already  stated,  to  allow  all  the   provi- 

*  Howard  v.  Davis,  2  Binney,  406 ;  Jackson  v.  Betts,  6  Cow.  483 ;  Steele 
V.  Price,  5  B.  Mon.  58;  8  Met.  486. 

t7B.  Men.  408. 

1 8  Watts  &  Serg.  275. 

§  Wharram  v.  Wharram,  10  Jur.  N.  S.  499.  A  will  and  codicil  were 
torn  to  pieces  by  a  testator's  eldest  son,  after  the  death  of  his  father  ; 
the  pieces  were  saved,  by  which,  and  by  oral  evidence,  the  court  arrived 
at  the  substance  of  those  instruments,  and  in  effect  pronounced  for  them. 
Foster  v.  Foster,  1  Addams,  462. 


162  CURIOSITIES   OP   WILLS. 

sions  of  the  will  to  stand  which  are  not  inconsistent 
with  those  of  the  codicil,  and  in  determining  this, 
to  seek  for  the  intention  of  the  testator,  as  far  as 
practicable.*  Where  a  codicil  refers  to  the  former 
of  two  inconsistent  wills,  by  date,  as  the  last  will  of 
the  testator,  it  has  the  effect  to  cancel  the  interme- 
diate will,  and  evidence  of  mistake  cannot  be  ad- 
mitted.! Where  a  codicil  named  the  wife  as  "  sole 
executrix  of  this  my  will,"  it  was  held  that  the  ap- 
pointment of  other  executors  in  the  will  was  re- 
voked.^: 

It  has  been  held  that  a  revocation  is  not  valid, 
in  most  of  the  American  States,  unless  done  with 
the  same  formality  required  in  the  execution  of  the 
will  itself.§ 

Thus,  writing  the  word  "obsolete"  on  the  mar- 
^n  of  his  will  by  the  testator,  but  without  signing 
the  same  in  any  of  the  modes  allowed  by  law,  will 
not  amount  to  a  revocation.]! 

In  a  somewhat  recent  case  in  Pennsylvania,  the 
question  of  revocation  arose,  in  regard  to  a  bequest 
to  charity. IT  The  court  held  that,  where  there  are 
two  wills,  in  some  respects  inconsistent,  the  latter 
revokes  the  former  only  so  far  as  they  are  inconsist- 
ent with  each  other,  unless  there  is  an  express 
clause  of  revocation.  But  where  the  property  given 
specifically  in  the  first  will  is,  in  the  second,  con- 
tained in  a  general  devise  to  the  same  objects,  and 

♦Patch  V.  Graves,  3  Denlo,  348  ;  28  Vt.  274. 

t4  Ves.  610. 

+  3Sw.  &Tr.  478. 

§  14  Mass.  208 ;  Hine  v.  Hine,  31  Penn.  24G. 

II  Lewis  V.  Lewis,  2  W.  &  S.  455. 

7  Price  V.  MaxweU,  28  Penn.  23. 


REVOCATION   OP  WILLS.  163 

for  the  same  purpose,  and  the  appointment  of 
other  executors,  there  is  a  manifest  inconsistency, 
and  it  evinces  an  intention  that  both  wUls  should 
not  stand. 

Many  times  it  happens  that  a  testator,  dissatis- 
fied "with  an  executor  or  devisee  named  in  his  "will, 
erases  the  name  of  such  executor  or  devisee ;  but 
this  "will  not  always  effect  his  purpose,  as  it  should 
be  done  by  a  subsequent  codicil,  properly  executed. 
Thus,  "where  a  testator  (without  a  republication  of 
his  will)  made  alterations  and  corrections  in  it,  with 
the  intent,  not  to  destroy  it,  but  to  enlarge  and  ex- 
tend a  devise  already  made,  it  was  held  not  a  revo- 
cation of  the  devise.* 

The  physical  destruction  or  cancelation  of  a  will 
by  a  testator  is  the  most  palpable  and  unmistakable 
mode  of  its  revocation.  In  what  manner  or  in 
what  different  modes  this  may  be  done  was  first 
laid  down  in  the  Statute  of  Frauds,  where  revoca- 
tion was  to  be  effected  by  "burning,  canceling, 
tearing,  or  obliterating "  the  will.  These  four 
phrases  have  been  generally  adopted  and  inserted 
in  our  statutes,  with  either  some  modification  or 
enlargement. 

The  enumeration  of  these  several  modes  for  the 
destruction  of  a  will  by  a  testator,  to  amount  to  its 
revocation,  has  not  prevented  controversy  and  un- 

*  Howard  v.  Halliday,  7  Johns.  B.  394.  If  two  -wills,  in  duplicate, 
were  in  possession  of  the  testator,  and  he  destroyed  one,  did  this,  in 
effect,  work  a  revocation  ?  This  was  in  some  doubt.  The  California 
Code  has  set  at  rest  this  question  for  that  State,  in  Sec.  1295,  where  it 
is  provided  that  a  destruction  of  one  of  the  copies  shall  amount  to  a  re- 
vocation.   See  Onions  v.  Tyrer,  2  Vem.  742. 


164  CURIOSITIES    OF   WILLS. 

certainty;  for  laAV  cannot  define  acts  in  words  so 
precisely  and  unmistakably  as  to  preclude  all  doubt 
and  quibbling.  There  are  sure  to  be  some  Avho  will 
play  upon  words — a  mental  recreation  to  Avhich 
legal  minds  are  somewhat  given — and  who  will 
insist  upon  an  exact  literal  conformity  when  a  i-e- 
vocation  is  sought  to  be  maintained  under  this  pro- 
vision. It  would  seem  to  an  ordinary  mind  hardly 
possible  to  admit  of  a  doubt  that  cutting  a  will  was, 
in  effect,  equivalent  to  tearing ;  yet  a  legal  quibble 
went  so  far  as  to  question  this,  when  it  became 
necessary  to  decide  that  cutting  was,  in  effect,  the 
same  as  tearing.*  Probably,  the  legislature  of  West 
Virginia  took  into  consideration  a  knotty  question 
of  this  kind,  and  took  good  care  to  save  a  legal 
luminary  stumbling  over  a  question  of  this  sort ; 
for,  by  the  statute  of  that  State,  it  is  provided  that 
a  revocation  in  this  manner  may  be  effected  by 
"  cutting,  tearing,  burning,  obliterating,  canceling, 
or  destroying  the  same." 

To  avoid  any  limited  construction  of  the  words 
as  used  in  the  English  Statute  of  Frauds,  it  is  gen- 
erally provided  in  our  statutes  that  a  revocation 
may  be  made  as  in  that  statute,  or  by  otherwise 
destroying  the  will.f  This  cuts  off  a  great  deal  of 
uncertain  construction,  and  removes  a  great  tempta- 

*  Hobbs  V.  Knight,  1  Ciirteis,  289.  And  the  cutting  out  of  the  principal 
part,  as  the  signatvue  of  the  testator,  or  of  the  ■witnesses,  will  be  a  revo- 
cation of  the  whole  will:  1  Jarman,  161. 

t  Where  the  word  "  destroying  "  is  used  in  the  statute,  as  one  mode  of 
revocation,  it  is  generally  held  to  include  all  modes  of  defacing  not  epe- 
ciflcally  enumerated  in  the  statute,  and  does  not  require  an  absolute 
and  entire  destruction.    Johnson  v.  Brailsford,  2  Nott  &  McCord,  272. 


REVOCATION"   OF   WILLS.  165 

tion  for  fine  legal  distinctions.  In  the  New  York 
statute,  a  revocation  is  effected  in  this  way,  if  the 
will  is  burnt^  torn^  obliterated,  canceled,  or  destroyed, 
with  intent  and  for  the  purpose  of  revoking  the 
same.* 

The  statute  very  wisely  requires  two  things  to 
be  combined  before  it  concludes  that  a  will  is  re- 
voked. There  must  be  the  act  of  destruction  with 
the  intent,  or  the  animo  revocandi,  as  the  law  terms 
it.  Under  the  English  statute,  it  had  been  determ- 
ined that  the  mere  acts  named  will  not  constitute 
a  valid  revocation  unless  done  with  the  intent  to 
revoke.f  Lord  Mansfield  here  explains  very  graphi- 
cally the  acts  which  might  often  occur,  which  would 
destroy  the  writing,  but  would  not  amount  to  a 
revocation  of  the  will ;  as,  if  a  man  were  to  throw 
ink  upon  his  will  instead  of  sand ;  or,  having  two 
wills,  of  different  dates,  should  direct  the  former  to 
be  destroyed,  and  by  mistake  the  latter  is  canceled. 
In  neither  case  would  it  amount  to  a  revocation  oi 
the  will,  although  the  writing  were  irrevocably 
gone. 

Revocation  is  an  act  of  the  mind  which  must  be 
demonstrated  by  some  outward  and  visible  sign. 
The  statute  prescribes  what  those  signs  are.  If  any 
of  these  are  performed  in  the  slightest  manner, 
joined  with  a  declared  intent  to  revoke,  it  will  be 
an  effectual  revocation.^ 

It  would  be  manifestly  a  harsh  and  an  unjust 

*  2  Kev.  Stat,  CO.    It  is  the  same  in  California:  Civil  Code,  129i 
t  Bnrtenshaw  7.  Gilbert,  1  Cowp.  49. 
$Dan  V.  Brown,  4  Cow.  490. 


166  CUBIOSITIES   OF  \VTLLS. 

construction  to  place  upon  the  statute,  that  because 
a  will  was  destroyed  in  any  one  of  the  modes  point- 
ed out,  that  a  strict  interpretation  required  a  revo- 
cation. Hence,  where  the  destruction  was  done 
unadvisedly,  or  by  some  other  casualty,  it  was  held, 
it  could  not  amount  to  a  revocation.  Thus,  where 
a  will  was  gnawed  to  pieces  by  rata,  but  the  pieces, 
being  collected,  were  afterwards  j)ut  together,  the 
will  was  admitted  to  probate.* 

And  in  Perkes  v.  Perkes,t  a  testator  having  quar- 
reled with  a  person  who  was  a  devisee  in  his  will, 
in  a  fit  of  passion  took  the  will  out  of  the  desk, 
and,  addressing  some  words  to  a  bystander,  tore  it 
twice  through,  but  was  prevented  from  jDroceeding 
further  by  the  interference  of  the  other  person 
and  the  submission  of  the  devisee ;  and  he  then 
became  calm,  put  up  the  pieces  and  said  :  "  It  is  a 
good  job  it  is  no  worse";  and  after  fitting  the 
pieces  together,  added :  "  There  is  nothing  ripped 
that  will  be  any  signification  to  it."  The  jury 
found  that  the  act  of  canceling  was  incomplete  at 
the  time  the  testator  was  stopped ;  and  the  court 
was  of  opinion  that  that  conclusion  was  right,  and 
that  the  will  was  not  revoked. 

Where  a  testator,  with  an  intent  to  revoke  his 
will,  endeavors  to  destroy  it  in  some  of  the  modes 
pointed  out,  but  through  the  fraud,  imposition,  or 
other  deception  of  a  person-,  the  act  is  prevented 
being  completed,  it  shall  not  prevent  a  revocation. 
The  following  case  is  a  striking  one,  and  illustrates 

*Etheringliam  v,  Etlieringham,  Aleyn,  2.  t  3  B.  &  Aid.  489. 


BEVOCATION   OF   WILLS.  167 

this  principle.  A  testator,  (who  had  for  two 
months  declared  himself  discontented  with  his 
will)  being  one  day  in  bed  near  the  fire,  ordered 
M  W,  who  attended  him,  to  fetch  his  will,  which 
she  did  and  delivered  it  to  him,  it  being  then 
whole,  only  somewhat  erased.  He  opened  it,  look- 
ed at  it,  then  gave  it  something  of  a  rip  with  his 
hands,  and  so  tore  it  as  almost  to  tear  a  bit  off, 
then  rumpled  it  together,  and  threw  it  upon  the 
fire,  but  it  fell  off.  It  must  soon  have  been  burnt, 
had  not  M  W  taken  it  up,  which  she  did,  and  put 
it  in  her  pocket.  The  testator  did  not  see  her  take 
it  up,  but  seemed  to  have  some  suspicion  of  it,  as 
he  asked  her  what  she  was  about,  to  which  she 
made  little  or  no  answer.  The  testator,  several 
times  afterwards,  said  that  was  not  and  should  not 
be  his  will,  and  bid  her  destroy  it.  She  said  at 
first,  "  so  I  will,  when  you  have  made  another  " ;  but 
afterwards,  upon  his  x*epeated  inquiries,  she  told 
him  that  she  had  destroyed  it,  though  in  fact  it 
was  never  destroyed,  that  she  believed  he  imagined 
it  was  destroyed.  She  asked  him  who  his  estate 
would  go  to  when  the  will  was  burnt ;  he  answered, 
to  his  sister  and  her  children.  He  afterwards  told 
a  person  that  he  had  destroyed  his  will,  and  should 
make  no  other  until  he  had  seen  his  brother,  J  M, 
and  desired  the  person  to  tell  his  brother  that  he 
wanted  to  see  him.  He  afterwards  wrote  to  his 
brother,  saying,  "  I  have  destroyed  my  will,  which 
I  made,  for  upon  serious  consideration,  I  was  not 
easy  in  my  mind  about  that  will,"  and  desired  him 
to  come  down,  saying,  "  If  I  die  intestate,  it  will 


168  CUTRIOSITIES   OF   "WTLLS. 

cause  uneasiness,"  The  testator,  however,  died 
without  making  another  will.  The  jury,  with  the 
concurrence  of  the  judge,  thought  this  a  sufficient 
revocation  of  the  will,  and  on  a  motion  for  a  new 
trial  it  was  so  held,  and  that  throwing  it  on  the 
fire,  with  an  intent  to  burn,  though  it  was  only- 
very  slightly  singed  and  fell  off,  was  sufficient 
within  the  statute.* 

The  English  coui-ts  are  more  strict  in  requiring 
a  substantial  compliance  with  the  statute  than  our 
courts  are.  In  the  American  cases,  the  intention 
is  looked  upon  as  the  most  material  and  controlling 
element :  as  where  a  testator  asked  for  his  will  on 
his  sick  bed,  and  was  handed  an  old  letter,  which 
he  destroyed,  supposing  it  to  be  his  will,  it  was  held 
to  bo  a  good  revocation. f 

And  where  a  testator  thi-ew  his  will  upon  the  fire, 
animo  revocandi,  and  it  was  taken  off  and  preserved, 
before  any  words  were  burned,  and  without  the 
testator's  knowledge,  it  was  decided,  by  a  very  able 
court,  that  it  did  amount  to  revocation. ^:  So, 
where  a  testatrix  burns  a  paper,  which  she  supposes 
to  be  her  will,  and  by  mistake  or  the  fraud  of  others 
burns  a  different  paper,  and  remains  under  this  mis- 
apprehension during  her  life,  it  amounts,  in  law,  to 
a  revocation.  §  But  in  a  case  in  Vermont  it  was 
held  that  the  mere  intention  or  desire  to  revoke 
one's  will,  until  carried  into  effect  in  the  manner 

*  Bibb  V.  Thomas,  2  W.  Bl.  1043. 

t  Pryor  v.  Coggin,  17  Ga.  444. 

t  White  V.  Carter,  1  Jones  (N.  C.)  Law,  197. 

§  Smiley  v.  GambiU,  2  Head,  164. 


EE VOCATION   OP   WILLS.  169 

prescribed  in  the  statute,  can  have  no  effect ;  how- 
ever, if  such  intention  is  defeated  by  fraud,  a  court 
of  equity  will  prevent  a  party  moving  from  any 
benefit  of  such  fraud.* 

The  two  words  "canceling"  and  "obliterating" 
have  occasioned  more  uncertainty  than  the  others 
used  in  the  statute,  because  it  is  not  so  easily  or 
exactly  determined  what  acts  shall  amount  to  a 
cancelation  and  what  to  an  obliteration  of  the 
will.  In  one  case,  the  will  was  found  with  another 
testamentary  paper,  but  the  place  in  which  the 
names  of  the  attesting  witnesses  should  have  ap- 
peared, upon  the  latter,  was  scratched  over  with  a 
pen  and  ink,  so  that  no  letter  of  a  name  could  be 
deciphered :  it  was  held  that  this  paper  was  thereby 
revoked,  and  the  will  was  admitted  to  probate 
alone.f 

It  seems  to  be  settled,  that  from  the  fact  of  in- 
terlineations and  erasures  appearing  upon  the  face 
of  a  will,  no  such  presumption  arises,  as  in  the  case 
of  deeds  and  other  instruments,  that  they  were 
made  before  execution.  But  in  regard  to  a  will  the 
case  is  different.  Hence,  where  the  testator  makes 
an  alteration  in  his  will  by  erasure  and  interlinea- 
tion, or  in  any  other  mode,  without  authenticating 
such  alteration  by  a  new  attestation  in  the  presence 
of  witnesses,  or  other  form  required  by  the  statute, 
the  will,  therefore,  stands  in  legal  force  the  same  as 
it  did  before,  so  far  as  it  is  legible  after  the  attempt- 
ed alteration,!  but  if  the  former  readmg  cannot  be 

•  Blanchard  v.  Blanchard,  32  Vt.  62.  il  Jur.  N.  8.  53. 

1 1  Jarman,  133. 

C.  OS  W.— 15. 


170  CURIOSITIES    OF   AVILLS. 

made  out  by  inspection  of  the  paper,  probate  is  de- 
creed, and  such  illegible  portions  are  treated  as 
blanks. 

In  a  case  in  Pennsylvania,*  where  the  will  was 
found  in  the  testator's  private  desk,  with  the  seals 
of  the  envelope  broken,  and  a  black  line  drawn 
through  the  name  of  the  testator,  and  there  was  no 
evidence  how  or  with  what  intent  it  was  done,  it 
was  held  a  sufficient  revocation.  Vice-Chancellor 
Wood,  in  a  case  in  New  York,t  decided  that  where 
a  testator,  having  torn  off  the  signature  from  the 
first  four  sheets  of  his  will,  and  struck  his  pen 
through  the  signature  upon  the  remaining  sheet, 
the  animus  revocandi  being  proved,  it  was  a  suffi- 
cient revocation. 

The  clearest  statement  of  the  law  on  this  head 
was  made  by  an  eminent  judge,  whose  language 
very  clearly  sums  up  the  law.  Chief  Justice  Ruffin, 
in  a  case  in  North  Carolina,t  says: 

"The  statute  does  not  define  what  is  such  a  can- 
celation or  obliteration  as  shall  amount,  conclusive- 
ly, to  a  revocation  of  a  will.  Burning,  or  the  utter 
destruction  of  the  instrument  by  any  other  means, 
are  clear  indications  of  purpose  which  cannot  be 
mistaken. 

"  But  obliterating  may  be  accidental,  or  may  be 
partial,  and  therefore  is  an  equivocal  act,  in  refer- 
ence to  the  whole  instrument,  and  particularly  to 
the  parts  that  are  unobliterated.     So,  canceling,  by 

*  Bap.  Church  v.  Koberts,  2  Penn.  110- 

1 1  Johns.  Ch.  530. 

X  BetheU  v.  Moore,  2  Dey.  &  Batt.  311. 


REVOCATION    OF    WILLS.  171 

merely  drawing  lines  through  the  signature,  leaving 
it  legible,  and  leaving  the  body  of  the  instrument 
entire,  is  yet  more  equivocal,  especially  if  the  in- 
strument be  i^reserved  by  the  party,  and  placed  in 
his  depository  as  a  valuable  jjaper.  It  may  be  ad- 
mitted that  the  slightest  act  of  cancelation,  with 
intent  to  revoke  absolutely,  although  such  intent 
continue  but  for  an  instant,  is  a  total  and  perpetual 
revocation,  and  the  paper  can  only  be  set  up  as  a 
new  will.  But  that  is  founded  upon  the  intent. 
Without  such  intention,  nO  such  effect  can  follow; 
for  the  purpose  of  the  mind  gives  the  character  to 
the  act.  "When,  therefore,  there  appears  a  cancel- 
ation, it  becomes  necessary  to  look  at  the  extent  of 
it,  at  all  the  conduct  of  the  testator,  at  what  he 
proposed  doing  at  the  time,  at  what  he  did  after- 
wards  For,  although  every  act  of  cancel- 
ing imports,  prima  facie^  that  it  is  done  anirno 
revocandi^  yet  it- is  but  a  presumption  which  may 
be  repelled  by  accompanying  circumstances." 

There  seems  to  be  no  question,  according  to  Jar- 
man,*  that,  under  the  Statute  of  Frauds  and  other 
similar  statutes,  as  parts  of  an  entire  will  may  be  re- 
voked, in  the  same  mode  the  whole  may  be  so  re- 
voked. The  same  rule  has  been  adopted  in  this 
country,  to  some  extent.  The  question  was  ably 
examined  by  Surrogate  Bradford,  in  a  case  in  New 
Tork.f  In  that  case,  a  testator,  after  his  will  had 
been  prepared  and  executed,  becoming  dissatisfied 
with  one  of  the  devisees,  his  own  daughter,  struck 

*  I  Jarman,  125.  t  McPbeRioa  v.  Clark,  3  Bradf .  92. 


172  CITRIOSITIES   OP   WILLS. 

out  the  devise  to  her,  which  was  contained  in  these 
words  :  "  To  ray  beloved  and  only  daughter,  Sarah 
Ann  McPherson,  I  give  and  bequeath,"  etc.  In  a 
note  to  the  foot  of  the  page,  he  gave  as  a  reason  for 
striking  out  this  devise,  the  bad  treatment  of  his 
daughter,  and  afterwards  altered  a  phrase  in  his 
will  where  "children"  was  used,  and  substituted 
"sons"  instead,  so  as  to  exclude  the  said  daughter. 
In  examining  this  question,  the  learned  Surrogate 
assumed  that  a  part  of  a  will  might  be  obliterated 
in  the  same  mode  as  the  whole,  and  referred  to  va- 
rious decisions  in  suj^port  of  this  view.  He,  how- 
ever, held  that,  as  the  subsequent  alteration,  sub- 
stituting "sons"  for  "children,"  was  invalid,  not 
having  been  re-witnessed,  as  is  required,  that  the 
obliteration  of  the  devise  was  not  effectual  as  to 
that  part,  and  could  not  be  treated  as  a  revocation. 
In  Kentucky,  in  the  case  of  Brown's  Will,*  it 
Avas  declared  that  a  cancelation  of  a  j^ortion  of  the 
devises,  the  testator's  signature  being  left  untouched, 
did  not  affect  the  residue  of  the  dispositions,  which 
remained  unaltered,  the  testatoi''s  intention  not  to 
revoke  them  being  clearly  established. 

»  1  B.  Mon.  57. 


CHAPTER  VII. 

Wills  as  Affected  by  Domicile. 

There  is  a  certain  respect  paid  by  the  laws  of  one 
nation  or  community  to  those  of  another,  which  is 
termed  international  comity,  which,  for  general  con- 
venience and  utility,  is  observed  and  regarded  by 
tribunals  when  certain  acts  done  in  one  place  are  to 
be  construed  in  another. 

Of  course,  such  comity  is  merely  conventional — 
there  is  no  binding  obligation  to  enforce  it;  but 
from  long  observance,  and  the  customary  regard 
tribunals  have  given  to  certain  rules  of  international 
comity,  these  rules  have  been  so  long  sanctioned  by 
l^recedent  and  authority  as  now  to  have  the  force 
of  law.  The  law  relating  to  wills  as  affected  by 
domicile  is,  to  a  great  extent,  founded  on  such  rules 
of  international  comity,  or  leges  gentium. 

The  principles  of  law  appertaining  to  this  sub- 
ject are  well  settled  and  recognized,  and  are  now 
invariably  acted  upon.  The  language  of  wills  is 
supposed  to  speak  the  sense  of  the  testator  accord- 
ing to  the  received  laws  or  usages  of  the  country 
where  he  is  domiciled,  by  a  sort  of  tacit  reference 
to  them,  unless  there  is  something  in  the  language 
which  repels  or  controls  such  a  conclusion. 

In  regard  to  personalty,  (in  an  especial  manner) 
the  law  of  the  place  of  the  testator's  domicile  gov- 
erns in  the  distribution  thereof,  and  will  govern  in . 

[173] 


174  CURIOSITIES   OF    WILLS. 

the  interpretation  of  wills,  unless  it  is  manifest  the 
testator  had  the  laws  of  some  other  countiy  in  his 
own  view.  This  is  usually  expressed  by  the  legal 
formula,  that,  with  regard  to  personal  property,  the 
lex  domicilii  govei-ns.*  The  law  on  this  subj(!ct  has 
never  been  more  clearly  expressed,  or  better  sum- 
marized, than  by  the  Lord  Chancellor,  in  the  case 
of  Enohin  v.  Wylie.f  His  lordsliip  there  says  :  "  I 
hold  it  to  be  now  put  beyond  the  possibility  of  a 
question,  that  the  administration  of  the  personal 
estate  of  a  deceased  person  belongs  to  the  court  of 
the  country  where  the  deceased  was  domiciled  at ' 
his  death.  All  questions  of  testacy  or  intestacy  be- 
long to  the  judge  of  the  domicile.  It  is  the  right 
and  duty  of  that  judge  to  constitute  the  personal 
representative  of  the  deceased.  To  the  courts  of 
the  domicile  belong  the  interpretation  and  con- 
struction of  the  will  of  the  testator.  To  determ- 
ine who  are  the  next  of  kin,  or  heirs  of  the  per- 
sonal estate  of  the  testator,  is  the  prerogative  of 
the  judge  of  the  domicile.  In  short,  the  court  of 
the  domicile  is  the  forum  concursus  to  whicli  the 
legatees  under  the  Avill  of  a  testator,:}:  or  the  parties 
entitled  to  the  distribution  of  the  estate  of  an  in- 
testate, are  required  to  resort." 

As  a  will  is  governed  in  its  intei'pretation  accord- 
ing to  the  law  of  the  place  where  the  testator  had 
his  domicile,  therefore,  if  a  testator,  born  and  domi- 

* 2  Doug.  (Mich.)  515. 

1 8  Jur.  N.  S.  897. 

t  Legatees  are  entitled  to  be  paid  in  the  money  of  the  country  in  which 
the  testator  is  domiciled  and  the  will  is  made.  2  Atk.  46.''  j  2  Bro,  C.  0. 
39. 


WILLS   AS    AFFECTED   BY   DOMICILE.  175 

ciled  in  England  during  his  whole  life,  should,  by 
his  will,  give  his  personal  estate  to  his  heir-at-law, 
that  the  descriptio  personm  would  have  reference 
to,  and  be  governed  by,  the  import  of  the  terms  in 
the  sense  of  the  laws  of  England.*  The  import  of 
them  might  be  very  different  if  the  testator  were 
born  or  domiciled  in  France,  Pennsylvania,  or  Mas- 
sachusetts. 

To  ascertain  what  the  testator  means,  we  must 
first  ascertain  what  was  his  domicile,  and  whether 
he  had  reference  to  the  laws  of  that  place  or  the 
laws  of  any  foreign  country.f 

The  law  of  the  domicile  governs  as  to  the  proper 
mode  of  execution  and  attestation  of  wills  of  per- 
sonal property;  hence  it  is  accepted  as  a  rule  of 

*  Harrison  v.  Nixon,  9  Peters,  483. 

t  To  determine  a  person's  domicile  is  sometimes  a  matter  of  some 
difficulty.  It  is  determined  on  two  principles  :  tbe  fact  of  one's  resi- 
dence, and  the  intent  of  remaining  there  as  at  one's  home ;  or  it  depends 
upon  habitation  and  the  animo  manendi.  Residence  and  domicile  are  not 
convertible  terms,  because  they  are  not  tho  same  things.  The  Boman 
definition  has  been  admired  for  its  expressiveness  and  force.  It  is  there 
defined  :  "  It  is  not  doubted  that  individuals  have  a  homo  in  that  place 
■where  each  one  has  established  his  hearth,  and  the  sum  of  his  posses- 
sions and  fortunes ;  whence  he  -will  not  depart  if  nothing  calls  him 
away  ;  whence  if  ho  has  departed  ho  seems  to  be  a  wanderer,  and  if  he 
returns  ho  ceases  to  wander."  (Code,  lib.  10,  tit.  39.)  It  must  bo  assumed 
as  a  fact  that  every  person  has  a  domicile,  or  home,  and  tho  domicile  of 
origin  remains  until  another  is  obtained,  not  by  morely  moving  or 
changing,  but  by  leaving  it  with  no  intention  of  returning,  without 
animo  revertendi.  But  an  intention  to  change  is  not  sufllcient  to  alter  a 
domicile  until  it  is  actually  changed.  Therefore,  death  en  route  does  not 
alter  domicile.  (State  v.  Hallet,  8  Ala.  159.)  One  who  goes  abroad, 
animo  revertendi,  does  not  change  his  domicile,  because  only  the  fact  of 
residence  is  changed,  and  not  the  intent.  But  if  he  remains  very  long 
abroad,  and  in  one  place,  the  intent  may  be  inferred  from  the  fact.  The 
Supremo  Court  of  the  United  States  have  intimated  that  an  exercise  of 
the  right  of  suffrage  would  be  the  highest  evidence,  and  almost  conclu- 
sive against  the  party.    {Shelton  v.  TiflSn,  6  How.  185.) 


176  CUKIOSITIES    OF   WILLS. 

universal  application,  that  a  will  of  personal  prop- 
erty, duly  admitted  to  probate  where  a  person  has 
his  domicile,  is  conclusive  on  all  other  courts,  and 
is  sufficient  to  pass  personal  property,  wherever 
situated.* 

It  has  been  a  subject  of  discussion,  whether  a 
will,  made  by  a  person  according  to  the  law  of  his 
domicile  at  the  time  when  made,  will  be  operative 
if  he  subsequently  changes  his  domicile,  and  dies 
in  his  new  domicile.  This  is  a  question  of  grave 
importance,  and  one  on  which  there  is  a  serious  con- 
flict of  authority.  The  question  is  then  presented, 
as  to  what  law  should  govern,  whether  the  law  of 
the  domicile  at  the  time  the  will  was  made,  or  the 
law  of  the  domicile  at  the  time  of  decease. 

This  question  arose  in  New  York,  in  a  case  Avhich 
passed  through  all  the  subordinate  courts,  and  was 
finally  determined  by  its  highest  court,  after  very 
thorough  and  learned  examination.  It  was  the  case 
of  Moultrie  v.  Hunt.f 

The  testator,  Benjamin  F.  Hunt,  i-esided  at 
Charleston,  and  there  made  his  will,  in  August, 
1849,  conformable  to  the  laws  of  South  Carolina. 
He  subsequently  removed  to  New  York,  where  he 

*  The  doctrine  was  weU  settled  in  a  very  early  case  iu  Pennsylvania, 
decided  by  Judge  Tilgham,  in  1808  :  the  case  of  Dcsasbats  v.  Borquier, 
1  Binn.  336  ;  and  this  case  has  ever  since  been  quoted  and  approved  as  a 
good  statement  of  the  law  on  this  paint.  There,  a  will  was  executed  in 
St.  Domingo  by  a  person  domiciled  there,  and  sought  to  be  enforced  in 
Pennsylvania,  where  the  effects  of  the  deceased  were.  It  appeared  not 
to  have  been  executed  according  to  the  laws  of  St.  Domingo,  though  it 
was  conceded  that  it  would  have  been  a  good  will  if  executed  by  a  citi- 
zen  of  Pennsylvania.    The  alleged  will  was  held  to  bo  invalid. 

t  23  N.  Y.  394. 


WILLS    AS    AFFECTED   BY   DOMICILE.  177 

established  his  domicile,  and  where  he  died.  His 
will  was  attested,  at  his  request,  by  three  witnesses; 
but  Mr.  Hunt  did  not  state  to  the  witnesses  the 
nature  of  the  paper  which  he  requested  them  to 
attest,  and,  therefore,  omitted  to  comj^ly  with  one 
of  the  requisites  of  the  statute  in  New  York,  which 
requires  a  publication  of  the  will,  to  be  a  valid  exe- 
cution thereof. 

The  Surrogate,  when  the  case  came  before  him, 
decided  to  admit  the  will  to  probate,  and  made  a 
decree  accordingly.  This  decree  was  affirmed  by 
the  Supreme  Court,  whence  it  was  taken  on  appeal 
to  the  Court  of  Appeals,  and  it  was  there  reversed, 
a  very  able  judge  (Denio)  writing  the  opinion  of 
the  court.  His  opinion  was  very  able  and  elabo- 
rate, and  a  thorough  examination  was  made  of  all 
the  authorities.  He  holds  that  a  will  cannot  oper- 
ate so  as  to  confer  rights  of  property  until  the 
death  of  the  testator,  until  which  event  it  is,  in  its 
essence,  ambulatory  and  revocable.  Therefore,  it 
is  the  laAv  in  force  at  the  death  of  the  testator  that 
should  govern  as  to  the  due  execution  of  a  will  and 
the  capacity  of  a  testator.  He  illustrated  this  in 
the  case  of  the  legislatui-e  making  laws  that  would 
have  the  effect  of  invalidating  wills  already  made, 
and  shows  that  where  a  will  was  witnessed  by  but 
two  witnesses,  three  being  required  at  the  time  it 
was  made,  that  it  was  subsequently  validated  by  a 
law  in  force  at  the  decease  of  the  testator,  allowing 
two  witnesses  to  attest  a  will.  He  quotes  from 
Story*  to  show  that  it  is  the  law  of  the  domicile  at 

*Confl.  Laws,  Sec.  481 ;  Adams  v.  Wilbur,  2  Sumner,  266. 


178  CUKIOSITIES    OF   WILLS. 

the  time  of  death  that  should  govern  as  to  the 
proper  execution,  and  he  approves  that  doctrine, 
and  holds  it  applicable  to  this  case  ;  which,  it  was 
held,  should  be  governed  by  the  law  of  New  York, 
the  law  of  the  domicile  of  the  testator  at  the  time 
of  his  death,  and  therefore  Mr.  Hunt  was  consid- 
ered as  dying  intestate  in  respect  to  jjersonal  prop- 
erty in  New  York.  Judge  Redfield,  in  his  Avork  on 
wills,  approves  of  this  doctrine,*  and  the  same  point 
has  been  decided  in  Missouri.! 

The  question,  however,  is  not  free  from  doubt,  as 
very  able  jurists  differ  on  it.  As  far  as  New  York 
is  concerned,  it  has  settled  the  law  there. 

The  case  of  the  will  of  General  Kosciusko,  before 
the  SujDreme  Court  of  the  United  States,  in  De- 
cember, 1852,  was  in  many  respects  the  most  nota- 
ble and  interesting  case  on  this  subject  ever  exam- 
ined. In  that  case,  it  was  necessary  to  examine, 
carefully  and  strictly,  the  law  of  wills  as  affected 
by  domicile,  and  the  manner  of  acquiring  a  domi- 
cile, and  the  mode  of  proving  it.  This  case,  besides 
its  importance  in  a  legal  jjoint  of  view,  is  of  much 
public  interest,  as  bringing  up  some  memorable  in- 
cidents connected  with  our  revolutionary  struggle 
and  the  eminent  personages  who  participated  in 
that  struggle.  It  is  found  in  the  case  of  Ennis  v. 
Smith,$  and  we  will  be  justified  in  stating  the  facts 
somewhat  in  detail. 

Kosciusko  made  four  wills,  one  in  the  United 
States  in  1798,  another  in  Paris  in  1806,  the  third 

*  WiUs  J.  404.  t  Nat  v.  Coons,  10  Mo.  543.  1 14  How.  400. 


WILLS    AS    AFFECTED   BY    DOMICILE.  179 

and  fourth  in  Switzerland,  whilst  sojourning  there 
during  the  years  1816  and  1817.  In  his  third  will 
there  was  a  revocation  clause,  canceling  the  first  and 
second  wills,  in  these  words : 

"  Je  revoque  tons  les  testaments  et  codiciles  que 
J'ai  pu  faire  avant  le  present  auquel  seul  Je  m'ar- 
rdte  comme  contenant  mes  dernier^s  volantes." 

The  object  of  the  suit  in  the  Supreme  Court  was 
as  to  the  disposition  of  a  fund  belonging  to  Kosci- 
usko in  the  United  States,  which,  it  was  claimed, 
was  undisposed  of  by  his  will,  and  to  which  the 
descendants  of  his  sisters  laid  claim  if  he  died  in- 
testate as  to  this  property  in  the  United  States. 
The  origin  of  this  fund  is  full  of  interest.  Kosci- 
usko came  here  in  1776,  entered  our  army  as  a  vol- 
unteer in  the  Engineers,  participated  in  all  the 
struggles  of  our  revolutionary  war,  and  retired  at 
its  close  with  the  rank  of  Brigadier  General,  poorer 
than  when  he  came,  and  actually  a  creditor  of  our 
government  for  his  military  pay.  During  his  ab- 
sence in  Europe,  participating  in  the  heroic  struggle 
of  his  native  land,  he  became  entitled,  under  a  milita- 
ry certificate,  to  the  sum  of  $12,280.54,  and  not  being 
able  to  receive  it  then,  Congress  passed  a  law  in 
1799  giving  him  interest  from  the  1st  of  January, 
1793,  to  Sist  December,  1797.  When  the  money 
was  paid  it  was  invested  in  American  stocks,  and 
placed  under  the  care  of  Jefferson.  By  judi- 
cious care  and  management  the  fund  increased  to 
the  sum  of  817,159.63,  which  was  the  subject  of 
the  suit  in  1852.  Before  his  departure  from  the 
country,  in  1798,  he  made  his  will  in  his  own  hand- 


180  CtTRIOSlTIES    OF    WILLS. 

writing,  directing  this  fund  to  be  laid  out  in  the  pur- 
chase of  young  negroes,  who  were  to  be  educated 
and  emancipated.  In  regard  to  this,  he  wrote  to 
Jefferson,  September  15th,  1817,  as  follows : 

"  We  all  grow  old,  and  for  that  reason,  my  dear 
and  respectable  friend,  I  ask  you,  as  you  have  full 
power  to  do,  to  arrange  it  in  such  a  manner,  that 
after  the  death  of  our  worthy  friend,  Mr.  Barnes, 
some  one  as  honest  as  himself  may  take  his  place, 
so  that  I  may  receive  the  interest  of  my  money  punc- 
tually;  of  which  money  after  my  death,  you  know  the 
fixed  destination.  As  for  the  j^resent,  do  what  you 
think  best." 

As  the  will  of  1816  revoked  the  two  previous 
wills,  the  disposition  of  the  fund  became  canceled. 

But  in  the  will  of  1817,  by  the  second  clause,  he 
provided :  "  Je  16que  tons  mes  effets,  ma  voiture,  et 
mon  cheval  y  comprise  S  Madame  et  a  Monsieur 
Zavier  Zeltner,  les  hommes  ce  dessus."  It  was  on 
this  clause  the  dispute  arose ;  because  it  was  claimed 
that  by  the  words  "  mes  effets,"  the  property  in  the 
United  States  passed,  that  it  was  a  residuary  de- 
vise, and  that  all  went  to  the  two  persons  named. 
On  the  other  hand,  it  was  claimed,  that  as  Koscius- 
ko, having  been  domiciled  for  fifteen  years  in  France, 
and  was  only  temporarily  sojourning  in  Switzerland, 
that  the  law  of  France  should  control,  and  that  the 
proper  interpretation  of  such  a  phrase  was  that  it 
referred  to  jjroperty  as  belonging  at  the  time  and 
which  was  attached  to  his  person,  and  that  the 
subsequent  words  restricted  its  meaning,  and  pre- 
vented it  having  a  general  signification.     It  was 


WILLS    AS    AFFECTED   BY   DOMICILE.  181 

held  that  as  to  this  property  in  the  United  States 
Kosciusko  died  intestate  ;  and  that,  on  the  principle 
that  personal  property,  wherever  it  may  be,  is  to  be 
distributed,  in  case  of  intestacy,  according  to  the 
law  of  the  domicile  of  the  intestate,  that  the  disposi- 
tion of  this  property  should  be  governed  by  the  law 
of  France,  the  proper  domicile  of  Kosciusko.  There 
vas  some  difficulty  to  ascertain  the  domicile,  but  it 
was  shown  that  he  did  not  leave  Poland  compulso- 
rily,  which  would  be  an  important  consideration  in 
determining  his  intent;  but  he  left  voluntarily  to 
obtain  a  cw'A  status  in  France,  which  he  conscien- 
tiously thought  he  could  not  enjoy  in  Poland  whilst 
it  continued  under  a  foreign  dominion. 

With  regard  to  real  estate,  a  different  rule  pre- 
vails. It  would  not  comport  with  the  dignity  or 
independence  of  one  country  to  allow  real  prop- 
erty, which  by  its  nature  is  fixed  and  immovable, 
to  be  controlled  and  affected  by  foreign  laws. 
Hence  it  is  the  law  of  the  place  where  the  real 
estate  is  situated  that  governs  in  its  distribution, 
and  as  to  the  proper  execution  of  a  will  devising  it. 
This  is  expressed  by  the  formula  that  the  lex  locus 
rei  sitCB  governs.  Thus,  a  devise  of  lands  in  Eng- 
land, though  made  abroad,  must  be  executed  pur- 
suant to  the  English  statute.  Thus,  where  0  made 
his  will  abroad,  devising  lands  in  England,  but  the 
same  was  executed  in  the  presence  of  two  witnesses, 
(three  being  necessary,  at  the  time  of  its  execution, 
to  devise  lands  in  England)  in  accordance  with  the 
law  where  he  was  domiciled,  it  was  held  that  the 
will  must  be  void  as  to  lands  in  England,  which 
C.  OF  w.— ic. 


182  CUEIOSITIES    OF   WILLS. 

lands  can  only  pass  by  such  a  will  as  the  laws  of 
England  reqxiire,  and  that  the  lex  rei  sitce  should 
govern.* 

And  if  a  testator,  by  his  will,  direct  personal 
property  to  be  invested,  in  another  State,  in  certain 
trusts  of  real  estate  there  lawful,  but  not  lawful  by 
the  law  of  the  State  where  the  testator  is  domi- 
ciled, the  trusts  will  be  declared  void. 

This  was  the  case  where  a  testator,  a  resident  of 
the  State  of  New  York  at  the  time  of  his  death, 
who,  by  his  will,  directed  his  jjersonal  property  and 
the  i^roceeds  of  his  real  estate  there  situated  to  be 
invested  in  real  estate  in  the  State  of  Ohio,  upon 
trusts  which  were  invalid  by  the  law  of  New  York, 
it  was  held  that  the  devise  in  trust  was  invalid,  as 
it  was  inconsistent  with  the  law  of  the  testator's 
domicile.! 

Jarman$  considers  that  a  will  of  realty  is  con- 
strued according  to  the  law  of  the  country  where 
the  land  is  situated;  but  Story, §  Greenleaf,||  and 
others  are  of  opinion  that  this  doctrine  of  the  lex 
rei  sitcp,  does  not  apply  to  the  construction,  as  dis- 
tinguished from  the  execution,  of  wills.  There  are 
several  American  authorities  on  either  side,  the  bal- 
ance, however,  being  in  favor  of  the  law  as  stated 
by  Jarman. 

A  will  has  always  been  presumed,  in  England,  to 

*  Coppin  V.  Coppin,  2  P.  Wms.  291.    This  was  accepted  as  an  indisput- 
able proposition,  in  Lynes  v.  Townsend,  33  N.  T.  558. 
t  Wood  V.  Wood,  6  Paige,  596  ;  9  Wheat.  565. 
X  VoL  1, 1. 

§  Conf .  Laws,  Sec.  479. 
II  Evid.  G71. 


■WILLS   AS   AFFECTED   BY   DOMICILE.  183 

speak  only  from  the  death  of  the  testator  as  to  per- 
sonalty, but  before  1838,  from  its  date  as  to  realty. 
By  1  Vict.,  Ch.  26,  devises  and  bequests  "wore  to  be 
from  death  of  the  testator,  unless  a  contrary  inten- 
tion appears.  The  rules  thus  settled  by  this  act 
have  long  been  adopted  in-  most  of  our  States.*  A 
will  is  presumed  in  the  following  States  to  speak 
only  from  the  testator's  death,  as  regards  the  sub- 
ject-matter (as  distinguished  from  the  objects)  of 
the  testator's  bounty:  California,  Maryland,  Mis- 
souri, New  York,  and  Pennsylvania. 

In  Virginia,  wills  of  land  speak  from  the  making 
of  the  instrument,  unless  it  discloses  an  intention 
to  the  contrary.!  It  is  so  in  Massachusetts,  New 
Hampshire,  Vermont,  Maine,  Indiana,  Illinois, 
North  Carolina,  Connecticut,  and  Kentucky; 
though  a  testator  may,  in  these  States,  convey  by 
his  will  any  after-acquired  land,  provided  he  de- 
clares his  intention  to  that  effect.  The  construction, 
however,  on  these  statutes  virtually  raises  a  pre- 
sumption that  wills  speak  only  from  the  death  of 
the  testator,  if  there  is  nothing  in  the  context  to 
the  contrary.  $ 

It  seems  the  better  opinion,  that  the  law  of  the 
doinicile  of  the  testator  will  govern  as  to  what 
shall  be  regarded  as  personal  estate,  and  what  real. 
Thus,  in  Kentucky,  shares  in  the  capital  stock  of 
railroad  companies  are  considered  as  real  property,§ 

*  Gold  V.  Judson,  21  Conn.  616. 

t  8  Cranch,  66  ;  G.  Stat.  (Mass.)  C.  92  ;  7  Met.  141 ;  6  N.  H.  47. 

t  Cashing  v.  Aylwin,  12  Met.  169. 

9  Washbume,  Real  Prop.  1, 166. 


184  CURIOSITIES   OP   AVILLS. 

and,  according  to  this  rule,  a  will  made  by  a  person 
domiciled  there  must  be  executed  as  a  will  of  real 
estate,  to  convey  such  shares. 

And  the  law  of  the  j)lace  of  domicile  must  gov- 
ern as  to  what  ought  to  be  regarded  as  testamentary 
capacity. 

Thus,  in  England,  administration  was  granted 
upon  the  probate  of  the  will  of  a  married  woman, 
domiciled  in  Spain,  she  being  also  a  native  of  that 
country,  it  appearing  that  by  the  law  of  that  coun- 
try a  feme  covert  may  dispose  of  her  property  by 
will,  with  certain  limitations,  the  same  as  a  feme 
sole.* 

*  Be  Maraver,  1  Hagg.  ^98. 


CHAPTER  VIII. 

Construction  of  Wills. 

It  is  obvious  that  within  the  scope  of  the  present 
work  it  is  inexpedient  to  treat  of  this  subject  ex- 
tensively ;  it  is  considered  only  necessary  to  advert 
to  a  few  of  the  leading  and  generally  recognized 
rules  followed  in  the  construction  of  wills,  both 
here  and  in  England. 

The  main  purpose,  in  this  direction,  is  to  ascer- 
tain the  true  intention  of  the  testator,  from  the 
language  used  in  the  instrument,  and  this  intention 
shall  prevail  above  every  other  construction  which 
might  be  placdd  on  the  language.  This  is  the  car- 
dinal rule  of  all  construction,  but  it  is  to  be  taken 
with  this  limitation,  that  the  intention  will  govern 
only  so  far  as  it  is  consistent  with  the  rules  of  law. 
The  general  intent  overrides  all  mere  technical  and 
grammatical  rules  of  construction. 

This  intention  is  to  be  ascertained  from  the  whole 
will  taken  together,  from  a  full  view  of  everything 
contained  within  "the  four  comers  of  the  instru- 
ment," *  and  not  from  the  language  of  any  particu- 
lar provision  when  taken  by  itself ;  and,  for  the  pur- 
pose of  construction,  a  will  and  codicil  may  be  con- 
sidered together,  and  construed  as  different  parts 

•  Hoxie  V.  Hoxie,  7  Paige,  187. 
[185] 


186  CURIOSITIES    OF   WILLS. 

of  the  same  instrument.*  But  where  several  parts 
are  absolutely  irreconcilable,  the  latter  must  pre- 
vail.! 

The  rule  as  to  intention,  governing  in  all  cases, 
is  somewhat  liable  to  misconception,  because  it  is 
susceptible  of,  and  may  be  taken  in,  two  senses. 

For  by  intention,  it  may  be  inferred  that  we  are 
to  seek  for  some  probable  purpose  as  existing  in 
the  testator's  mind  at  the  time ;  or  may  seek  to  ex- 
tract that  intention  from  the  meaning  of  the  lan- 
guage which  he  has  used.  It  is  in  this  latter  sense 
alone  in  which  construction  is  employed.  The  will 
must  be  in  writing,  and  the  only  question  is,  wliat 
is  the  meaning  of  the  words  used  in  that  writing  ? 
And  to  ascertain  this,  every  part  of  it  must  be  consid- 
ered, with  the  help  of  those  surrounding  circumstan- 
ces which  are  admissible  in  evidence  to  explain  the 
words,  and  to  put  the  court  as  nearly  as  possible  in 
the  situation  of  the  writer. 

This  was  well  expressed  in  Cole  v.  Rawlinson,  t 
by  Lord  Holt  when  he  said :  "  The  intent  of  a  tes- 
tator will  not  do,  unless  there  be  sufficient  words 
in  the  will  to  manifest  that  intent;  neither  is  the 
intent  to  be  collected  from  the  circumstances  of  his 
estate,  and  other  matters  collateral  and  foreign  to 
the  will,  but  from  the  words  and  tenor  of  the  will 
itself."  The  rule  was  well  illustrated  in  the  case 
of  Doe  V.  Dring,  §  where  a  testator,  intending,  no 
doubt,  to  dispose  of  all  his  property  for  the  benefit 
of  his  family,  used  these  words :  "  All  and  singular 

*  Hone  V.  Van  Schaick,  3  Barb.  Ch.  488.  +  1  Salk.  234. 

t  2  W.  Bl.  976.  §  2  Mau.  and  SeL  454. 


CON-STRTrCTIOIf   OP   WILLS.  187 

my  effects  of  what  nature  and  kind  soever,"  Lord 
Ellenborough  said,  that  if  he  were  asked  his  private 
opinion  as  to  what  the  testator  really  meant  when 
he  used  these  words,  he  would  reply,  that  he  must 
be  supposed  to  have  meant  that  which  his  duty  pre- 
scribed to  him,  to  convey  all  his  pi'operty  for  the 
maintenance  of  his  family  \  but  as  a  jwJge,  he  was 
not  at  liberty  to  collect  his  meaning  from  matters 
dehors^  but  only  from  expressions  used  on  the  face 
of  the  will,  and  that  the  expression  "  effects  "  had 
always  a  meaning,  in  the  absence  of  anything  in  the 
context,  which  necessarily  excluded  real  estate. 
However,  if  the  context  shows  that  by  the  expres- 
sion, "  all  my  personal  estates,"  the  testator  meant 
to  include  real  property,  it  will  be  so  held  by  reason 
of  the  clear  intention  manifested  on  the  face  of  the 
wiU.* 

An  introductory  clause  expressing  a  testator's 
desire  to  dispose  of  all  the  property  he  should 
"leave  behind  him"  may  be  referred  to,  to  construe 
the  will  as  passing  all  lands  belonging  to  the  testa- 
tor at  the  time  of  his  death.f 

It  is  one  of  the  most  troublesome  questions  in 
law,  as  to  how  far  parol  evidence  can  be  admitted 
to  ascertain  the  intention  of  a  testator.  The  prin- 
ciple was  early  established,  that  parol  evidence 
should  not  be  admitted  to  vary,  contradict,  or  en- 
large the  terms  of  a  will,  and  this  is  still  rigidly 
adhered  to.    This  was  well  established  in  what  is 


*  Roe  V.  Pattison,  16  East.  221 ;  Wheeler's  Heirs  v.  Dnnlap,  13  B.  Mon. 
293. 
t  Youngs  V,  Youngs,  45  N.  Y.  254. 


188  CITRIOSITIES   OF   WILLS. 

kno^\^l  as  Lord  Cheney's  Case,*  where  it  is  said 
that  "  otherwise  it  were  great  inconvenience  that 
not  any  may  know  by  the  written  words  of  the  will 
what  construction  to  make,  if  it  might  be  controlled 
by  collateral  averment,  out  of  the  will." 

Chancellor  Kent,  in  Mann  v.  Mann,t  examined 
this  subject  with  much  industry  and  learning,  and 
declared  the  result  to  be :  that  from  Cheney's  Case 
down  to  this  day,  it  has  been  a  well-settled  rule 
that  parol  evidence  cannot  be  admitted  to  supply 
or  contradict,  enlarge  or  vary  the  words  of  a  will, 
nor  to  explain  the  intention  of  the  testator,  except 
in  two  specific  cases :  1st.  Where  there  is  a  latent 
ambiguity  arising  dehors  the  will,  as  to  the  person 
or  subject  meant  to  be  described  ;  and  2d.  To  rebut  ar 
resulting  trust. 

What  is  a  latent  ambiguity  is  thus  described  in 
the  quaint  but  expressive  language  of  Lord  Bacon  : 
'■'■Latens  is  that  which  seemeth  certain,  and  without 
ambiguity  for  anything  that  appeareth  upon  the 
deed  or  instrument;  but  there  is  some  collateral 
matter  out  of  the  deed  that  breedeth  the  ambiguity ; 
as,  if  I  grant  my  manor  of  S  to  J  F  and  his  heirs, 
here  appeareth  no  ambiguity  at  all;  but  if  the  truth 
be  that  I  have  the  manors  both  of  North  S  and 
South  S,  this  ambiguity  is  matter  in  fact,  and, 
therefore,  it  shall  be  holpen  by  averment,  whether 
of  them  was  that  the  party  intend  should  pass." 

A  patent  ambiguity  is  one  that  is  apparent  on  the 
face  of  the  will,  and  is  only  to  be  remedied  by  con- 

*  5  Co.  68  b.  1 1  Johns.  Ch.  231. 


CONSTEXrCTION   OF   WILLS.  189 

struction  of  the  language,  if  possible.  As,  for  ex- 
ample, if  the  devise  is  to  one  of  the  sons  of  J  S, 
who  has  several  sons,  such  an  uncertainty  in  the 
description  of  the  devisee  cannot  be  explained  by 
parol  proof.* 

As  a  general  rule,  courts  do  not  admit  parol  evi- 
dence in  cases  of  jjatent  ambiguity;  but  on  this  head 
there  is  a  difference  of  decision  in  this  country.  We 
have  no  uniform  rule  throughout  the  United  States, 
either  by  statute  or  construction,  as  to  the  extent 
to  which  parol  testamentary  evidence  is  admissible. 
In  some  States,  the  English  rules  will  be  followed 
in  the  main,  which  is  to  admit  no  extrinsic  evidence 
except  to  explain  a  latent  ambiguity.  But  in  many 
of  the  States,  undoubtedly,  extrinsic  evidence  of 
the  testator's  circumstances,  as  distinguished  from 
his  intention,  will  be  admitted  in  aid  of  the  con- 
struction of  any  expression  left  ambiguous  by  the 
context.f  In  New  York,  the  courts  adhere  to  the 
English  rule,  and  admit  no  extrinsic  evidence,  ex- 
cept to  explain  a  latent  ambiguity.^  In  Maryland, 
the  strict  rules  of  construction  prevail,  and  no 
parol  evidence  is  admitted  except  as  in  England.  § 
The  same  is  the  rule  in  Ohio.  |[ 

It  seems  to  be  a  universally  received  doctrine  in 
the  American  courts,  that  extrinsic  evidence  of  the 


*  2  Vern.  624. 

t  Brownfleld  v.  Btownfleld,  20  Penn,  55 ;  Johnson  v.  Johnson,  32  Ala. 
637.  Where  there  is  no  ambiguity  on  the  face  of  a  will,  evidence 
la  inadmissible  to  explain  it :  Hill  v.  Alford,  46  Ga.  247. 

t  Jackson  v.  Sill,  11  Johns.  201. 

§  Walston  V.  White,  5  Md.  297. 

II  Worman  v.  Toagarden,  2  Ohio  N.  S.  380. 


190  CUKIOSITIES   OF   WILLS. 

declarations  of  the  testator,  made  at  the  time,  be- 
fore or  after  the  execution  of  the  will,  cannot  be 
received  to  show  the  intention  of  the  testator  by 
the  use  of  particular  words  therein,  or  by  its  gen- 
eral scope ;  as,  that  by  the  use  of  the  word  "  chil- 
dren" he  meant  to  include  step-children;*  or  that 
a  bequest  to  the  parent  was  intended  for  the  children 
of  such  parent,  who  was  known  by  the  testator  to 
have  died ;  or  that  the  term  "  children "  was  in- 
tended to  include  illegitimate  children  ;  f  or  in  any 
sense  to  vary  the  express  provisions  of  the  will,  or 
to  show  in  what  sense  he  used  a  well-settled  term 
of  law.  t  ^or  are  the  declarations  of  the  testator 
admissible  to  show  the  existence  of  a  will  at  the 
time  they  were  made.  §  But,  in  a  case  in  Michigan, 
it  was  held,  where,  after  the  death  of  the  testator, 
a  will  twenty-five  years  old  was  discovered  in  a 
barrel  among  waste  papers,  and  either  torn  or  worn 
into  several  pieces,  which  were  scattered  loose 
among  the  papers  in  the  barrel,  that  the  declara- 
tions of  the  testator,  made  after  the  date  of  the 
will,  were  admissible,  not  as  separate  and  independ- 
ent evidence  of  revocation,  but  as  tending  to  ex- 
plain whether  the  instrument  was  thus  torn  acci- 
dentally, or  with  intent  to  revoke.  (|  The  code  of 
California  has  settled  this  question  for  that  State ; 

*  Asay  V.  Hoover,  5  Penn.  21. 

t  2  Sneed,  618. 

t  Allen  V.  Allen,  18  How.  (U.  S.)  385. 

§  Betts  V.  Jackson,  6  Wend.  187. 

II  Lawyer  v.  Smith,  8  Mich.  411. 


CONSTRTTCTION   OF    WILLS.  191 

it  excludes  all  declarations  of  the  testator's  inten- 
tion.* 

To  ascertain  the  intention  of  the  testator  from 
the  language  of  the  instrument,  certain  rules  of 
construction  have  been  established,  which  have  ob- 
tained the  acquiescence  and  authority  of  the  courts. 
If  technical  words  are  used  by  the  testator,  he  will 
be  presumed  to  have  employed  them  in  their  legal 
sense,  unless  the  context  contain  a  clear  indication 
to  the  contrary,  t  Courts,  therefore,  have  no  right 
or  power  to  say  that  the  testator  did  not  under- 
stand the  meaning  of  the  words  he  has  used,  or  to 
put  a  construction  upon  them  different  from  what 
has  been  long  received,  or  what  is  affixed  to  them 
by  the  law.  t  There  can  be  no  place  for  construc- 
tion, for  the  discovery  of  the  testator's  intention, 
when  he  has  used  words  of  an  unequivocal,  definite 
sense  in  law,  and,  however  it  may  frustrate  any 
presumed  worthy  designs,  the  import  of  the  terms 
as  used  must  prevail.§ 

In  Hicks  v.  Salitt,||  the  court  said :  "  When  a 
testator  uses  a  word  which  has  a  well-known,  or- 
dinary acceptation,  it  must  appear  very  certain 
that  he  has  said,  on  the  face  of  the  will,  that  he 
uses  it  in  another  sense,  before  the  ordinary  sense 

can  be  interfered  with In  order  to  alter  the 

meaning  of  a  word,  it  must  appear,  not  that  the 
testator  might  have  meant  it  in  a  different  sense, 

•  Civil  Code,  1340 ;  Estate  of  Garraud,  35  Oal.  336. 

t  4  Vesey,  329 ;  1  Salk.  233. 

X  Hodgson  V.  Ambrose,  1  Dong.  311. 

§  Theall  v.  Theall,  G  La.  220. 

II 18  Jar.  913. 


192  CITRIOSITIBS   OF   WILLS. 

but  that  he  ')nust  have  meant  it  in  a  different  sense." 
The  right  of  every  testator  to  use  words  in  a 
sense  different  from  the  technical  legal  sense,  pro- 
vided it  is  apparent,  is  well  established  and 
acknowledged.  Thus,  in  deference  to  the  context, 
the  word  "money  "has  been  held  to  pass  stock  in  the 
funds;*  though  its  technical  meaning,  according 
to  Coke,  only  implies  gold  and  silver,  or  the  lawful 
circulating  medium  of  a  country.f 

This  technical  meaning  of  the  word  was  applied 
in  Mann  v.  Mann,  t  where  a  testator  bequeathed 
"  all  the  rest,  residue,  and  remainder  of  the  moneys 
belonging  to  his  estate  at  the  time  of  his  decease," 
which  was  held  not  to  comprehend  promissory 
notes,  bonds  and  mortgages,  and  other  securities, 
there  being  nothing  in  the  will  itself  to  show  that 
the  testator  intended  to  use  the  word  in  that  ex- 
tended sense.  And  the  words  "nephews  and 
nieces"  have  been  held  to  include  great-nephews 
and  great-nieces,  different  from  the  import  of  these 
terms  as  settled  in  law;§  and  the  word  "family" 
has  been  held  to  include  a  husband. || 

In  the  case  of  Hussey  v.  Berkeley, U  Lord  Not- 
tingham, upon  the  question  whether  the  testatrix 

*  Dowson  V.  Gaskoin,  2  Kee.  14.  The  word  "  money  "  used  in  making 
a  devise  in  a  wiU,  wiU  be  construed  to  include  both  personal  and  real 
property,  if  it  appears  from  the  context,  and  on  the  face  of  the  instru- 
ment, that  such  was  the  intention  of  the  testator.  Estate  of  Miller,  48 
Cal.  1G5. 

t  Co.  Litt.  207. 

1 1  Johns.  Ch.  231. 

§  James  v.  Smith,  14  Sim.  214. 

II  5  Vesey,  159. 

U  2  Eden,  194. 


CONSTRUCTION   OP   WILLS.  193 

intended  to  include  great-cfrandchildren  under  the 
term  grandchildren,  considered  the  fact  that  she 
had,  in  another  part  of  the  will,  called  a  great- 
gT-andchild  her  granddaughter,  as  conclusive  evi- 
dence of  her  intention  to  include  such  great-grand- 
daughter in  the  residuary  clause  of  the  will,  under 
the  general  description  of  her  grandchildren. 

The  court  is  bound  to  give  effect  to  every  word 
of  a  will  without  change  or  rejection,  provided  an 
effect  can  be  given  to  it  not  inconsistent  with  the 
general  intent  of  the  whole  will  taken  together.* 
Thus,  if  one  devises  land  to  A  B  in  fee,  and  after- 
wards in  the  same  will  devises  the  same  land  to  C 
D,  for  life,  both  parts  of  the  will  shall  stand  ;  and 
in  the  construction  of  the  law,  the  devise  to  C  D 
shall  be  first.t  But  when  it  is  impossible  to  form 
one  consistent  whole,  the  separate  parts  being  ah- 
solutehj  irreconcilable,  the  latter  will  prevail,  t  Thus, 
where  the  testator,  by  one  clause  of  his  will,  be- 
queathed a  slave  to  his  son,  remainder  to  his  issue, 
remainder  over ;  and  by  a  subsequent  clause  ]?e- 
queathed  the  same  slave  to  his  daughter,  with  like 
limitations,  it  was  held  that  the  clauses  were  incon- 
sistent, and  the  last  revoking  the  first,  that  the 
daughter  was  entitled  to  the  legacy.§ 

If  a  testator's  intention  cannot  operate  to  its  full 

*  Thus,  in  a  case  in  California,  Norris  v.  Henley,  27  Cal.  439,  a  testator 
devised  his  real  estate  upon  a  particular  street,  one-third  to  each  of  three 
persons  by  name,  "to  have  and  to  hold  their  lifetime,  and  then  to  go  to 
their  heirs  and  assigns,  hvt  never  to  sell."  It  was  held  to  create  a  fee,  and 
these  words,  "  never  to  sell,"  bad  no  effect. 

t  Cro.  Eliz.  9. 

t  Sims  V.  Doughty,  5  Ves.  243  :  Parks  v.  Parks,  9  Paige,  107. 

§  Frazer  v.  Boone,  1  W.  R.  HiU,  367. 
C.  OF  W.— IT. 


194  CURIOSITIES    OF   WILLS. 

extent,  it  shall  take  effect  as  far  as  possible.*  And 
where  a  will  contains  different  trusts,  some  of  which 
are  valid,  and  others  void  or  unauthorized  by  law ; 
or  where  there  are  distinct  and  independent  pro- 
visions as  to  different  portions  of  the  testator's 
property,  or  different  estates  or  interests  in  the 
same  portions  of  the  property  are  created,  some  of 
which  provisions,  estates,  or  interests  are  valid,  and 
others  are  invalid,  the  valid  trusts,  provisions,  es- 
tates, or  interests  created  by  the  will  will  be  pre- 
served, unless  those  which  are  valid  and  those 
which  are  invalid  are  so  dependent  upon  each  other 
that  they  cannot  be  separated  without  defeating 
the  general  intent  of  the  testator.f 

Words,  in  general,  are  to  be  taken  in  the  ordinary 
and  grammatical  sense,  unless  a  clear  intention  to 
to  use  them  in  another  can  be  collected.:}:  Thus,  in 
Young  V.  Robertson,§  it  is  laid  down :  The  primaiy 
duty  of  a  court  of  construction,  in  the  interpreta- 
tion of  wills,  is  to  give  to  each  word  employed,  if 
it  can  with  propriety  receive  it,  the  natural  ordinary 
neaning  which  it  has  in  the  vocabulary  of  ordinary 
life,  and  not  to  give  words  employed  in  that  A'ocab- 
ulary  an  artificial,  a  secondary,  and  a  technical 
meaning.  Thus,  a  testator,  in  a  clause  of  his  will, 
provided  that  the  share  of  the  estate  of  any  of  his 
children  dying  without  issue  should  be  equally 
divided   among  the   survivors   of  his   children  or 

*3  p.  "Wms.  259  ;  Cal.  Civ.  Code,  1317. 

t  Parks  V.  Parks,  9  Paige,  107 ;  Williams  v.  Williams,  4  Seld.  525 ;  Haw- 
ley  V.  James,  16  Wend.  61. 
t  Clirystie  v.  Phyfe,  19  N.  Y.  Ui. 
%  8  Jvx.  N.  S.  825. 


CONSTRUCTION   OF   WILLS.  195 

grandchildren,  and  it  was  held  that  a  step-daughter 
was  not  a  surviving  child  of  the  testator,  within  the 
intent  and  meaning  of  this  clause  of  the  will,  so  as  to 
entitle  her  to  a  portion  of  the  shares  of  one  of  the  tes- 
tator's daughters,  who  died  without  leaving  issue, 
even  though  this  step-daughter  was  acknowledged 
to  be  of  the  family,  and  treated  there  as  a  child.* 

And  the  word  "  children  "  does  not,  ordinarily 
and  properly  speaking,  comprehend  grandchildren 
or  issue  generally;  these  being  included  in  that 
term  is  only  permitted  in  two  cases,  viz.,  from  ne- 
cessity which  occurs  where  the  will  would  remain 
inoperative  unless  the  sense  of  the  word  "  children  " 
were  extended  beyond  its  natural  import,  and  where 
the  testator  has  clearly  shown  by  other  words  that 
he  did  not  intend  to  use  the  term  "children"  in 
its  proper,  actual  meaning,  but  in  a  more  extensive 
sense.  In  Osgood  v.  Lovoring,t  the  word  was  held 
to  include  grandchildren,  it  being  apparent  from 
the  context,  that  this  was  the  meaning  given  by  the 
testator.$ 

This  term  imports  legitimate  children  only  ;§  but 
if  it  is  notorious  that  a  testator  had  no  such  legiti- 
mate children,  but  had  others  who  went  by  reputa- 
tion, and  were  acknowledged  as  his  children,  these 
can  take  under  this  term.|I 

In  Lord  Woodhouslee  v.  Dalrymple,^  aJegacy  was 

*  Matter  of  HaUet.  8  Paige,  375, 

t  33  Maine,  464. 

%  Huglies  V.  Hughes,  12  B.  Mon.  121. 

S  Metham  v.  Duke  of  Devon,  1  P.  Wms.  629. 

H  Cartwright  v.  Vawdry,  6  Vesey ,  530 ;  Gardner  v.  Heyer,  2  Paige,  12. 

112  Meriv.  419. 


196  CITRIOSITIBS    OF   WILLS. 

given  "  to  the  children  of  the  late  C  K,  who  shall  be 
living  at  my  decease  " ;  C  K  being  dead  at  the  date 
of  the  will  leaving  illegitimate  children,  (of  whom 
three  were  living  at  the  testator's  death)  and  not 
having  had  at  the  date  of  the  will,  nor  having  ever 
had,  any  lefjitimate  children,  the  three  illegitimate 
children  were  held  to  be  entitled. 

The  word  "  issue  "  is  a  term  of  more  general  sig- 
nification than  children ;  it  includes  not  only  chil- 
dren, but  all  lineal  descendants,  however  remote, 
for  successive  generations.  It  has  been  called  by 
Lord  Holt  a  nomen  collectwwn;*  but  this  word  has 
frequently  been  construed  to  signify  children,  where 
it  was  so  ajjparent  from  the  context.f 

The  phrase,  "dying  without  issue,"  in  wills,  for 
a  long  time  occasioned  much  obscurity,  and  was  a 
fruitful  source  of  litigation.  Thus,  if  an  executory 
devise  were  limited  to  take  effect  on  a  dying  with- 
out heirs,  or  on  a  failure  of  issue,  or  "without 
leaving  issue,"  or  "without  issue,^^  the  limitation 
was  held  to  be  void,  because  the  contingency  Avas 
too  remote,  as  these  phrases  being  interpreted  to 
mean  an  indefinite  failure  of  issue,  the  vesting  of 
the  estate  would  thus  be  suspended  beyond  the 
period  allowed  by  law.  But  other  words  used  in 
the  will  might  control  this  construction,  as  to  show 
that  the  testator  intended  to  limit  the  vesting  of  the 
estate  to  issue  living  at  the  time  of  the  death  of 
the  first  taker.  This  contrary  intent  would  be  in- 
ferred by  the  use  of  the  words  "  living,"  or  "  leav- 

*1  Vent.  231 ;  IMooro  v.  Moore,  12  B.  Mon.  G55. 

t  Sibley  v.  Perry,  7  Ves.  522 ;  Pope  v.  Pope,  14  Beav.  591. 


CONSTBUCTIOX   OF   AVILLS.  197 

ing  issue  behind,"  or  "without  children."  Unless 
such  qualifying  words,  however,  were  used,  the 
words  '-'■  dying  without  issue^^  were  construed  as 
meaning  an  indefinite  failure  of  issue.* 

The  statute  law  of  New  York,  and  many  of  the 
States,  has  settled  the  construction  of  this  term,  as 
it  is  provided  under  these  statutes  that  it  shall  be 
construed  to  mean  heirs  or  issue  living  at  the  death 
of  the  person  named  as  ancestor.f 

Gifts  and  devises  are  sometimes  made  to  a  "  fam- 
ily," and  the  decisions  have  given  to  the  word  the 
same  construction  as  "  kindred,"  or  "  relations."  t 

In  Robinson  v.  Waddelon,  §  a  testator  gave  all 
the  residue  of  his  effects  to  be  equally  divided 
between  his  two  daughters  and  their  husbands  and 
families;  the  court  rejected  the  words  "husbands 
and  families,"  and  held  that  the  two  daughters  took 
the  residue  equally  and  absolutely  as  tenants  in 
common. 

Roper  has  the  following  observations  on  devises 
and  bequests  to  2,  family :  "  The  word  fam,ily,  when 
applied  to  personal  property,  is  synonymous  with 
"  kindred  "  or  "  relations."  If  it  be  asked,  of  what 
family  is  A,  the  question  will  be  answered  by  be- 
ing informed  from  what  person  he  is  descended, 
and  whoever  is  related  by  blood  to  that  stock  is 
related  to,  and  of,  the  family  of  A.  This  being  the 
ordinary  acceptation  of  the  word,  it  may  never- 

*  Hopkins  v.  Jones,  2  Barr,  69 ;  Moore  v.  Moore,  12  B.  Mon,  653. 
t  N.  T.  Rev.  Stat.  Vol.  HI,  p.  12. 
X  9  Vesey,  319. 
g  8  Sim.  \U. 


198  CURIOSITIES    OF   WILLS. 

theless  be  confined  to  particular  relations  by  the 
context  of  wills ;  or  the  term  may  be  enlarged  by 
it,  so  that  the  expression  may  in  some  cases  mean 
children^  or  next  of  Jcin^  and  in  others  may  even 
include  relations  by  marriage."  * 

Personal  chattels  are  not  unfrequently  described 
by  reference  to  locality,  as  where  a  testator  be- 
queaths the  "household  goods,"  "things,"  "prop- 
erty," or  "effects"  which  are  in  or  about  a  house. 
These  words,  it  seems,  in  general,  will  not  pass 
cash,  bank  notes,  bonds,  notes,  or  other  chases  in 
action  being  in  the  house. f 

In  Woolcomb  v.  Woolcomb,  $  a  testator  be- 
queathed to  his  wife  all  his  household  goods,  and 
other  goods,  plate,  and  stock,  within  doors  and 
without,  and  bequeathed  the  residue  of  his  estate 
to  J  S.  It  was  held  that  the  ready  money  and 
bonds  did  not  pass  by  the  word  goods^  for  then  the 
bequest  of  the  residue  would  be  void. 

Bequests  of  "  chattels  and  effects "  are  clearly 
adequate  to  pass  the  whole  personal  estate,  yet 
where  these  words  are  collocated  with  household 
goods,  they  may  be,  and  frequently  are,  restrained 
to  articles  ejusdem  generis.% 

A  testator,  after  several  legacies  of  bank  stock  and 
other  stock  and  money,  concluded  his  will  as  follows : 
•'The  remainder  of  my  worldly  substance,  consisting 

*  Legacies,  Oh.  II,  Sec.  10. 

t  Jones  V.  Sefton,  4  Vesey,  166. 

t  3  P.  Wms.  112. 

§  Timewell  y.  Perkins,  2  Atk.  103.  The  word  "  estate  "  in  s  will  car- 
rfes  everything,  unless  restrained  by  particular  expressions  :  Turbett  v. 
Turbett,  3  Yeates,  187. 


CONSTEUCTION   OP    WILLS.  199 

of  furniture,  bedding,  carpets,  china,  kitchen  furni- 
ture, looking-glasses,  crockery,  etc.,  I  give  to  my  two 
daughters,  etc.;  these,  with  all  money  of  mine  that 
may  remain  in  bank  at  the  time  of  my  death,  with 
all  claims  or  demands  of  whatever  nature,  I  give  to 
my  two  daughters,  etc."  The  testator  had  several 
shares  of  bank  stock  and  other  stock,  not  specifically 
bequeathed.  It  was  held  that  this  bank  stock  and 
other  stock  did  not  pass  under  the  above  bequest.* 

The  courts  of  equity,  even  in  England,  do  not 
seem  disposed  to  apply  the  rule  ejusdem  generis 
with  so  much  strictness  as  formerly.  In  the  late 
case  of  Swinfen  v.  Swinfen,t  it  was  decided  that 
in  a  bequest  particularized  by  one  word,  followed 
by  general  words,  the  latter  was  not  to  be  restricted 
to  things  ejusdem  generis;  as  where  the  bequest 
was,  "  all  my  estate  at  S  or  thereto  adjoining,  also 
all  furniture,  or  other  moveable  goods  here,"  it  was 
held  that  the  live-stock  and  implements  of  husband- 
ry in  and  about  the  premises  passed  by  the  bequest. 
It  was  also  held  that  money  in  the  house  at  the 
time  of  the  testator's  death  passed  to  the  legatee. 

In  Bro-svn  v.  Cogswell,^  where  the  bequest  was  of 
"  all  my  household  furniture,  wearing  apparel,  and 
all  the  rest  and  residue  of  personal  property,  sav- 
ing and  excepting  one  feather  bed,"  it  was  held 
to  carry  the  entire  residuum  of  personal  property. 
A  bequest  of  furniture  in  a  particular  house  (ex- 
cept plate)  will  include  plated  articles  in  use  in  the 

*  Delamater's  Estate,  1  Wharton,  362. 
t  29  Beav.  207. 
tS  AUen,  556. 


200  CITRIOSITIES    OF    WILLS. 

house,  the  word  "  plate  "  meaning  solid  plate  only. 
Such  a  bequest  embraces  only  the  articles  jierma^ 
nently  in  use  in  the  house.* 

Words,  however,  in  a  will,  which  if  allowed  to 
stand  would  produce  repugnant  and  inconsistent 
results,  may  be  rejected.!  Others  may  be  supplied 
where  there  is  no  doubt  in  regard  to  the  words  in- 
tended, and  others  may  be  transposed  and  changed 
to  carry  out  the  sense  and  intention  of  the  testator.^ 

The  will  must  be  most  favorably  and  benignly 
expounded  to  pursue  and  effectuate,  if  possible,  the 
intention  of  the  testator,§  and  of  two  modes  of 
construction,  that  is  to  be  preferred  which  will  pre- 
vent a  total  intestacy.|I  The  strict  rules  of  con- 
struction adopted  in  England,  when  strictly  and  un- 
flinchingly applied,  had  often  the  effect  of  invali- 
dating wills ;  but  there  has,  of  late,  been  evinced  a 
tendency  to  relax  this  stringency  of  construction, 
and  the  proportion  of  wills  and  bequests  which  have 
been  declared  void  for  uncertainty  has  been  con- 
stantly diminishing;  and,  at  present,  it  is  becoming 
more  rare,  unless  through  some  fatal  accident  or 
miscarriage  in  the  preparation  of  the  instrument. 
The  same  tendency  is  observable  in  the  decisions  of 
the  American  courts. 

Construction  with  the  aid  of  precedents  and  anal- 

♦Holderv.  Bamsbottom,9  Jur.  N.  S.  350;  Nichols  v.  Osbom,  2  P. 
Wms.  419. 

t  Pond  V.  Bergh,  10  Paige,  140  ;  13  Alass.  537;  Estate  of  Wood,  36  Cal. 
75. 

t  Wootton  V.  Redd,  12  Gratt.  196. 

§3  Burr,  1634. 

II  4  Vesey,  406. 


CONSTEUCTION   OP   WILLS.  201 

ogies  is  only  resorted  to  to  ascertain  the  intention 
of  a  testator;  all  construction  is  subordinate  to 
that  single  purpose;  and  analogy  and  precedent 
should  have  no  further  influence  when  they  lead 
one  side  of  the  intention.  They  should  only  be 
used  as  our  assistants  to  this  end. 

It  will  be  found  useful  and  appropriate,  at  the  con- 
clusion of  this  chapter,  to  give  the  seven  propositions 
of  Sir  James  Wigram,  in  his  approved  and  reliable 
work  respecting  the  admission  of  extrinsic  evidence 
in  aid  of  the  interpretation  of  wills.  He  divided 
the  subject  into  seven  propositions,  as  follows  : 

Proposition  I. — ^A  testator  is  always  presumed  to 
use  the  words  in  which  he  expresses  himself 
according  to  their  strict  and  primary  acceptation, 
imless  from  the  context  of  the  will  it  appears  that 
he  has  used  them  in  a  different  sense,  in  which  case 
the  sense  in  which  he  thus  appears  to  have  used 
them  will  be  the  sense  in  which  they  are  to  be  con- 
strued. 

Proposition  11. — ^Where  there  is  nothing  in  the 
context  of  a  will  from  which  it  is  apparent  that  a 
testator  has  used  the  words  in  which  he  has  ex- 
pressed himself  in  any  other  than  their  strict  and 
primary  sense,  and  where  his  words,  so  interpreted, 
are  sensible  with  reference  to  extrinsic  circumstances^ 
it  is  an  inflexible  rule  of  construction,  that  the 
words  of  the  will  shall  be  interpreted  in  their  strict 
and  primary  sense,  and  in  no  other,  although  they 
maybe  capable  of  some  popular  or  secondary  inter- 
pretation, and  although  the  most  conclusive  evi- 
dence of  intention  to  use  them  in  such  popular  or 
secondai'y  sense  be  tendered. 


202  CURIOSITIES    OF   WILLS. 

Proposition  III. — Where  there  is  nothing  in  the 
context  of  a  will  from  which  it  is  apparent  that  a 
testator  has  used  the  words  in  which  he  has  ex- 
pressed himself  in  any  other  than  their  strict  and 
primary  sense,  but  his  words,  so  interpreted,  are 
insensible  with  reference  to  extrinsic  circumstances^ 
a  court  of  law  may  look  into  the  extrinsic  circum- 
stances of  the  case,  to  see  whether  the  meaning  of 
the  words  be  sensible  in  any  popular  or  secondary 
sense,  of  which,  with  reference  to  these  circum- 
stances, they  are  capable. 

Proposition  IV. — ^Where  the  characters  in  which 
a  will  is  written  are  difficult  to  be  deciphered,  or 
the  language  of  the  will  is  not  understood  by  the 
court,  the  evidence  of  persons  skilled  in  decipher- 
ing writing,  or  who  understand  the  language  in 
which  the  will  is  written,  is  admissible  to  declare 
what  the  characters  are,  or  to  inform  the  court  of 
the  proper  meaning  of  the  words. 

Proposition  V. — For  the  purpose  of  determining 
the  object  of  a  testator's  bounty,  or  the  subject  of 
disposition,  or  the  quantity  of  interest  intended  to 
be  given  by  his  will,  a  court  may  inquire  into  every 
material  fact  relating  to  the  person  who  claims  to 
be  interested  under  the  will,  and  to  the  property 
which  is  claimed  as  the  subject  of  disposition,  and 
to  the  circumstances  of  the"  testator,  and  of  his 
family  and  affairs,  for  the  j^urpose  of  enabling  the 
court  to  identify  the  person  or  thing  intended  by 
the  testator,  or  to  determine  the  quantity  of  inter- 
est he  has  given  by  his  will.  The  same  (it  is  con- 
ceived)   is   true   of    every   other   disputed    jjoint, 


CONSTEUCTION-   OP   WILLS.  203 

respecting  which  it  can  be  shown  that  a  knowledge 
of  extrinsic  facts  can,  in  any  way,  be  made  ancil- 
lary to  the  right  interpretation  of  a  testator's 
words. 

Proposition  VI. — Where  the  words  of  a  will, 
aided  by  evidence  of  the  material  facts  of  the  case, 
are  insufficient  to  determine  the  testator's  meaning, 
no  evidence  will  be  admissible  to  prove  what  the 
testator  intended,  and  the  will  {except  in  certain 
special  cases  in  Proposition  VII)  will  be  void  for 
uncertainty. 

Proposition  VII. — ^Notwithstanding  the  rule  of 
law  which  makes  a  will  void  for  uncertainty  where 
the  words,  aided  by  evidence  of  the  material  facts 
of  the  case,  are  insufficient  to  determine  the  testa- 
tor's meaning,  courts  of  law,  in  certain  special 
cases,  admit  extrinsic  evidence  of  intention,  to 
make  certain  the  person  or  thing  intended,  where 
the  description  in  the  will  is  insufficient  for  the 
purpose.  These  cases  may  be  thus  defined  :  Where 
the  object  of  a  testator's  bounty,  or  the  subject  of 
disposition,  {i.  e.,  the  person  or  thing  intended)  is 
described  in  terms  which  are  applicable  indiffer- 
ently to  more  than  one  person  or  thing,  evidence 
is  admissible  to  prove  which  of  the  persons  or 
things  so  described  was  intended  by  the  testator. 


INDEX. 


Abatement — of  legacies,  p.  96. 

Accumulation — ^how  far  allowed  in  common  law,  p.  143. 

extraordinary  case  of,  p.  143. 

limits  to,  p.  145. 
Acknowledgment — of  signature  to  will,  p.  55. 
Ademption — of  legacy,  p.  97. 
Age — of  person  making  will,  pp.  68,  69. 

manner  of  reckoning,  p.  69. 

extreme,  not  an  incapacity,  pp.  86,  87. 
Alienation — suspension  of  power  in  will,  how  limited,  p.  146. 

utmost  period  permitted,  p.  147. 
Alfred,  King— will  of,  pp.  32,  33. 
Ambiguity — latent,  definition  of,  p.  188, 

latent,  parol  evidence  admitted  to  explain,  p.  188. 

patent,  what  it  is,  p.  188. 
Animals — singular  regard  for  in  wills,  pp.  77,  78. 

regard  of  Louis  Bonard  for,  p.  82. 
Annuity  in  ■will — when  to  commence,  p.  117. 
Attestation — of  will,  p.  64. 

forms  of,  p.  67. 

B. 

Bacon,  Lord — maxim  of,  in  regard  to  parol  evidence,  p.  129. 

Bastard — ^not  classed  in  law  as  a  child,  p.  124. 

Bequest — meaning  of,  p.  93. 

BUnd  persons — their  capacity  to  make  will,  p.  70. 

C.  OF  W.— 18.  [2053 


206  INDEX. 

Bonard,  Louis — will  of,  p.  82. 

singular  life  and  belief  of,  pp.  81-83. 
Bradford,  Surrogate — ^his  principles  in   admitting  will  of 

aged  persons,  p.  88. 
Brinckerhoff,  Dorothea— vrill  of,  p.  62. 
Burial— directions  for,  in  will,  pp.  10,  16,  21,  77. 
Burning  ■will — a  mode  of  revocation,  p.  163. 

o. 

Cancelation  of  ■will — a  mode  of  revocation,  p.  163, 

what  shall  amount  to,  p.  169. 
Canute— will  of,  p.  32. 
Capacity — to  make  will,  as  to  age,  pp.  68,  85. 

physical  and  mental,  pp.  69-71. 
Charitable  uses — devises  to,  formerly  allowed,  pp.  132,  133. 

doctrine  of,  derived  from  civil  law,  p.  133. 

doctrine  of,  existed  in  common  law,  pp.  135,  141. 

this  denied  in  Levy  v.  Levy,  p.  139. 

law  of,  has  varied  in  New  York,  p.  135. 

researches  of  Prof.  Dwight  on,  p.  151. 

what  are,  p.  133. 
"  Chattels  and  effects  " — what  shall  pass  by  in  will,  p.  198. 
Child — does  not  include  step-child,  p.  195. 

illegitimate,  when  a  bequest  to  is  good,  p.  124. 

in  ventre  sa  mere  can  take  interest  in  will,  p.  121. 
Children — meaning  of  term  in  will,  pp.  121,  122,  195. 

imports  legitimate  only,  p.  195. 
Clergy — early  connection  of  with  wills,  p.  33. 

exclusive  jurisdiction  over  wills,  p.  35. 

intervention  in  probate  matters,  p.  34. 

their  influence  over  the  dying,  pp.  36,  131. 
Codicil — ^how  far  will  control  provision  in  wUl,  p.  161. 

when  it  will  cancel  a  -will,  p.  162. 

how  several  are  to  be  construed,  p.  160, 
Concanen,  Edward — will  of,  p.  111. 
Conditions — in  will,  how  far  legal,  p.  107. 

illegal,  p.  113. 

precedent  and  subsequent,  what  are,  pp.  103,  104. 


INDEX.  207 

Construction — of  -will,  purpose  of,  pp.  185,  191. 
Constantinople — bequest  to  poor  of,  p.  86. 
Corporations — prohibited  from  taking  by  devise,  p.  132. 

what  are  allowed  to  take  by  devise  in  New  York,  p;  142, 
Coverture — formerly  incapacitated  woman,  making  will,  p. 
90. 

not  now  generally  an  incapacity,  p.  91. 
CromTwell — singular  bequest  to,  p.  18. 
Cruger,  Harriet  Douglas — will  of,  p.  84. 

her  history  and  singular  delusion,  p.  85. 
Curtesy — married  woman  cannot  defeat  right  in  will  in  some 
States,  p.  92. 

married  women  may  defeat  in  New  York,  p.  92. 
Cutting — a  will  equivalent  to  tearing,  p.  164. 

D. 

Deaf  and  dumb — their  capacity  to  make  wil>,  pp.  69,  70. 
Declarations— of  testator,  not  admitted  to  show  intention 

in  a  will,  p.  190. 
Delusion — what  it  is,  pp.  72,  75. 

of  Harriet  Douglas  Cruger,  p.  85. 
Denbigh,  Earl  of — singular  bequest  to,  p.  17. 
Devise — meaning  of  term,  distinguished  from  legacy,  p.  93. 
Domicile — ^how  determined,  p.  175. 

law  of  relating  to  wills  part  of  leges  gentium,  p.  173. 

law  of  governs  in  interpretation  of  wills,  p.  175. 

law  of  at  time  of  decease  governs,  p.  176. 
Drunken  men — when  incapable  of  making  will,  p.  71. 

E. 

Eccentricity — difference  between  and  monomania,  p.  76. 

remarkable  case  of,  p.  76. 
Ecclesiastical — ^jurisdiction  over  wills,  rise  of,  p.  35. 

courts'  decisions  binding  in  law  of  wills,  p.  40. 
"Effects  " — meaning  of  in  will,  pp.  187,  198. 

meaning  of  in  will  of  Kosciusko,  p.  179. 


208  INDEX. 

Emptor  familiae — ^position  of  in  Eoman  law,  p.  31. 
Erasures — and  interlineations  in  a  will,  effect  of,  p.  1G9, 
Executor — appointment  of  in  will,  p.  52. 

allowed  a  year  to  settle  estate,  p.  Hi. 

duty  of  in  paying  legacy  to  child,  p.  118. 

not  disqualified  to  receive  legacy,  p.  120. 

responsibility  of  in  paying  legacies,  p.  114. 

when  to  pay  legacy,  pp.  114,  115. 

"  Family  "—construction  of  term  in  will,  pp.  192,  197. 

explanation  of  term  by  Roper,  p.  197. 
Female — able  to  make  will  earlier  than  male  in  some  States, 

p.  69. 
Females — their  fondness  for  animals,  p.  77. 
Fraud — preventing  revocation  of  a  will,  pp.  166,  1G8. 
Funeral  expenses — provided  for  in  will,  pp.  11,  14. 

directions  for  pa3rment  not  necessary,  p.  51. 

Geigley,  "William — will  of,  p.  108. 
Grandchildren,  construction  of  term  in  will,  p.  193. 
Greenwood,  singular  delusion  of,  p.  73. 

H. 

Harcourt,  Mr.  Granville — will  of,  p.  13. 

Hceres— of  Eoman  law,  description  of,  p.  30. 

Henry  VIII — will  of,  providing  for  dean  and   canons  of 

Windsor,  p.  24. 
Hindoos — no  will  among,  p.  31. 
Holographic  will,  p.  50. 

singular  example  of  in  California,  p.  50. 
Hunt,  Benjamin  F. — will  of,  illustrating  law  of  domicile, 

p.  176. 


INDEX.  209 


I. 


Insanity — definition  of,  p.  72. 

partial  not  recognized  in  early  law,  p.  73. 

partial,  how  far  invalidates  a  will,  p.  74. 
Interest — on  legacies,  when  to  commence,  p.  116. 

on  specific  legacies,  p.  117. 

on  legacy  before  payment  causes  legacy  to  vest,  p.  100. 
In  terrorem— doctrine  of,  pp.  Ill,  112. 
In  extremis — ^persons  in  allowed  to  make  nuncupative  wills, 
p.  43. 

persons  in  frequently  unduly  influenced,  p.  135. 
Intention — governs  in  the  construction  of  a  will,  pp.  95, 
101,  185. 

most  considered  in  revocation  of  will,  p.  168. 

governs  so  far  as  consistent  with  rules  of  law,  p.  185. 

how  ascertained,  p.  185. 

to  operate  as  far  as  possible,  if  not  wholly,  p.  193. 
"Issue" — meaning  of  term  in  a  will,  p.  196. 
"Issue,  dying  •without  " — former  construction  of,  p.  196. 

meaning  now  by  statute,  p.  197. 

J. 

Jefferson — ^farm  of,  at  Monticello,  devised  by  Commodore 

Levy,  p.  106. 

given  charge  of  fund  belonging  to  Kosciusko,  p.  179. 

Justinian — ^law  of  as  to  jwrtion  reserved  for  children,  p.  32. 

limited  bishop's  interference  in  probate  matters,  p.  34. 

limited   military  testament  to  those  actually  on  an 

expedition,  p.  48. 

K. 

Kensett,  William — singular  disposition  of  his  body,  p.  77. 

Kerr,  Catharine — will  of,  p.  58. 

Kidd,  Captain — treasures  of,  superstition  regarding,  p.  79. 


210  ESDEX. 

Kosciusko — will  of  before  United  States  Supreme  Court,  p. 
178. 
interesting  facts  regarding  his  career,  p  179 


Latent  amoigtiity — what  is,  p.  188. 
Legacy — abatement  of,  p.  96. 

ademption  of,  when  takes  place,  p.  97. 

contingent,  definition  of,  p.  97. 

conditional,  and  variety,  pp.  103-105. 

conditional,  what  conditions  are  valid,  p.  103. 

conditional,  in  restraint  of  marriage,  p.  107. 

general,  examples  of,  pp.  93-95. 

general,  importance  of  distinction,  p.  96. 

in  lieu  of  dower  draws  interest  from  death  of  testator, 
p.  117. 

interest  on,  when  to  begin,  pp.  116,  117. 

payable  out  of  real  estate,  pp.  100,  102. 

payment  of,  pp.  114,  115. 

payment  of,  to  whom,  p.  118. 

pecuniaiy  sometimes  held  specific,  p.  95, 

specific,  definition  of,  p.  93. 

specific,  various  examples  of,  p.  94. 

to  infants,  to  whom  paid,  p.  118. 

to  a  class,  who  shall  take,  p.  122. 

vested,  when  becomes,  pp.  99,  100. 
Legatee — how  ascertained  in  some  cases,  p.  125. 

error  in  description  of,  how  remedied,  p.  126. 

who  may  be,  p.  119. 
Levy,  Commodore — remarkable  will  of,  p.  136. 
Lex  domicilii — governs  will  of  personal  property,  p.  174. 
Lex  rei  sitae — governs  will  of  real  property, 

M. 

Marriage — ^revokes  will  previously  made  by  a  woman,  p.  157. 
of  children,  attempt  to  control,  p.  113. 


INDEX.  211 

Marriage — Continued. 

restraint  of,  how  far  legal,  p.  111. 

of  poor  maids,  provisions  of  Henry  Raine  for,  pp.  133, 
134. 
Married  woinen — capacity  to  take  legacy  or  devise,  p.  119. 

legacy  to,  formerly  paid  to  husband,  p.  119. 

power  of  to  make  will  of  jiersonal  property,  p.  91. 

law  of  American  States  is  giving  more  enlarged  privi- 
leges to,  p.  91. 

power  of,  by  will  in  New  York,  p.  92. 
Masses — legacy  to  say,  pp.  21,  25. 
May,  Thomas — singular  bequest  to,  p.  17. 
"Money" — strict  meaning  of,  in  a  will,  p.  192. 

may  include  stock  in  funds,  p.  192. 

held  to  include  real  and  personal  property,  p.  192. 
Montdcello — devised  by  Commodore  Levy,  p.  136. 
Monomania — what  it  is,  recognition  of  in  law,  p.  73. 

when  will  avoid  will,  p.  75. 

rise  of  theory  in  Dew  v.  Clark,  p.  74 

different  from  eccentricity,  p.  76. 

]sr. 

Nephews  and  nieces — ^who  are  meant  by,  p.  192. 
Non  compos  mentis — incapacity  of  to  make  will,  p.  71. 

who  are,  p.  72. 
Nuncupative  "will — its  nature,  p.  42. 

limitations  of  in  Statute  of  Frauds,  p.  43. 

generally  limited  to  soldiers,   sailors,    and  persons  in 
extremis,  p.  43. 

decision  on  in  Cole  v.  Mordaunt,  p.  44. 

cases  on  numerous,  since  civil  war,  p.  49. 

opinion  of  Kent  in  relation  to,  p.  45. 

was  in  general  use  before  Statute  of  Frauds,  p.  42. 

how  limited  in  New  York  and  California,  p.  48. 

limitations  of,  by  statute  in  England,  p.  48. 


212  mDEx. 

Ordinary — his  privileges  in  early  English  law,  p.  37. 


Parol  evidence— when  admissible,  pp.  123,  126,  129,  IGO. 

of  contents  of  lost  will  is  received,  p.  160. 

is  not  80  readily  in  England,  p.  161. 

not  admitted  to  vary,  contradict,  or  enlarge  the  terms 
of  a  will,  p.  187. 

in  what  cases  is  admitted,  p.  188. 
Pembroke,  Earl  of — curious  will  of,  p.  15- 
Perpetuities — statute  against,  p.  150. 
Personal  estate — when  a  bequest  of  may  be  specific,  p.  97. 

may  include  real  estate  sometimes,  p.  87. 
Personal  property — age  at  which  will  of  may  be  made,  p. 

68. 
"Personalty  " — meaning  of  term  in  will,  p.  120. 

law  of  domicile  governs  in  wills,  p.  173. 
"Plate  " — meaning  of  term  in  will,  p.  200. 
Povrer — execution  of,  in  a  will,  p.  52. 
Powrer  of  appointment — given   niarried  women  to  make 

will,  pp.  52,  91. 
Publication  of  "will — and  in  what  States  required,  pp.  60-64. 

R 

Raine,  Henry — will  of,  p.  132 

Rationabiles  partes — meaning  of  in  early  English  law,  p. 

36. 
Reading,  Mrs.  Kitty  Jenkyn  Packe — will  of,  p.  11. 
Real  estate — legacy  payable  out  of,  rule  as  to,  p.  100. 

will  of,  pp.  38,  69. 
Restraint  of  marriage — in  will,  p.  107. 

curious  case  of,  p.  113. 

not  permitted  in  B.oman  law,  p.  107. 


IKDBX.  213 

Restraint  of  marriage — Continued. 

of  widow  allowed  in  our  law,  p.  110. 

of  widower  not  allowed,  p.  111. 

in  general  not  permitted,  p.  113. 
Revocation  of  will — may  take  place  in  two  modes,  p.  152. 

an  implied  revocation  a  subject  of  discussion,  p.  153. 

by  marriage  of  feme  sole,  p.  153. 

implied  not  by  birth  of  child,  p.  153. 

by  marriage  and  birth  of  child  implied,  p.  154. 

by  subsequent  will,  when,  pp.  159,  162. 

not  effected  by  writing  "  obsolete  "  on  will,  p.  162. 

by  burning,  canceling,  tearing,  etc.,  p.  163. 

what  acts  amount  to  in  New  York,  p.  165. 

requires  two  things — act  and  intent,  p.  166. 
Ridley,  Hon.  Araminta  Monck — will  of,  p.  106. 
Robbins,  James — will  of,  p.  110. 
Roman  will — nature,  and  manner  of  making,  p.  32. 
Roman  Catholic — not  to  marry  a,  a  condition  in  will,  pp. 

106,  111. 
Roosevelt — will  of,  founding  hospital  in  New  York,  p.  149. 
Rose — will  of  declared  void,  founding  "  Rose  Benevolent 
Institution,"  p.  150. 

s. 

Salisbury,  Earl  of— eingular  bequest  to,  p.  17. 
Sandwich,  Countess  Dowager — will  of,  p.  11. 
Scotchman — ^not  to  marry  a,  a  condition  in  a  will,  p.  106. 
Seal — ^not  required  in  will,  except  in  New  Hampshire,  p.  52 
Seastedt,  Eliza— will  of,  p.  63. 
Senile  dementia — what  it  is,  p.  86. 

when  an  incapacity  to  make  will,  p.  87. 
"Servants  " — meaning  of  term  in  a  will,  p.  125. 
Shakspeare — will  of,  p.  21. 

his  singular  provision  for  his  wife,  p.  22. 
Signature — to  will,  effect  of  tearing  off  by  a  testator,  p.  170. 
Society  for  Prevention  of  Cruelty  to  Animals — bequest 
to,  p.  82. 


214  HTDEX. 

Solon — ^lawa  of  relating  to  wills,  p.  31 
Specific  legacy — defined,  p.  93. 

interest  on  begins  from  testator's  death,  p.  116. 
Starkey,  John — will  of,  p.  14. 
Statute — of  Distributions,  p.  37. 

of  Frauds,  pp.  38,  44,  53. 

of  Frauds,  influence  of  in  j  orisprndence,  p.  38. 

of  Mortmain,  pp.  132,  135. 

of  Wills,  p.  38. 

of  43  Elizabeth  in  regard  to  charitable  uses,  p.  133. 

of  43  Elizabeth  not  in  force  in  New  York,  p.  135. 

of  43  Elizabeth,  where  in  force,  p.  141. 
Subscription — to  will,  p.  55. 
Succession,  universal — among  Romans,  p.  30. 
Superstitious  use — definition  of,  pp.  132,  133. 
Surrogate — derivation  of  term,  p.  40. 

T. 

Testament — meaning  of  term,  p.  41. 
Testamentary  capacity — generally  exists,  p.  68. 

as  to  age,  p.  68. 
Testamentary  disposition — law  places  limits  on,  pp.  130, 
142. 

limits  to,  in  early  English  law,  p.  36. 
Thelusson,  Peter — extraordinary  will  of,  p.  143. 
Thompson,  Mr. — singular  habits  of,  p.  78, 
Tonnele,  John — will  of,  p.  56. 
Trusts — what  are  valid  in  a  will,  p.  140. 
Turner,  Sharon — will  of,  p.  12. 


u. 

United  States— bequests  to,  pp.  136,  140,  150. 
Uses  and  trusts — law  of,  to  avoid  Statute  of  Mortmain,  p. 
132. 


INDEX.  215 


V. 


Van  Hanrigh,  Mrs. — will  of,  p.  14. 

Virginia — bequest  to,  in  trust,  by  Commodore  Levy,  p,  133. 


West,  Lady  Alice— curious  will  of,  p.  18. 
VTife — who  will  answer  for  in  a  will,  p.  124. 

reproachful  allusions  to  in  a  will,  pp.  11,  12. 

affectionate  allusions  to  iii  a  will,  pp.  13,  14. 
"Will — acknowledgment  of  signature  to,  p.  55. 

appointment  of  executor  in,  p.  52. 

attestation  of,  p.  64. 

definition  and  nature  of,  p.  41. 

destroying,  what  it  signifies,  p.  164. 

directions  in  as  to  burial,  pp.  10,  11,  16,  77 

directions  in  as  to  debts,  p.  51. 

divided  into  two  claases,  verbal  and  written,  p.  42 

duplicate,  effect  of  destroying,  p.  163. 

erasures  in,  p.  163. 

holographic,  and  where  valid,  p.  50. 

importance  of,  p.  9. 

inofficious,  pp.  31,  75. 

introductory  clause  in,  p.  51. 

language  of,  immaterial,  p.  53. 

making,  solemnity  of  act,  pp.  9,  51. 

may  consist  of  many  instruments,  pp.  52,  158. 

mode  of  Nvriting,  p.  53. 

nature  of,  among  Romans,  pp.  31,  32. 

not  of  effect  until  death,  pp.  121,  152. 

opinions  of  others  in,  freely  expressed,  pp.  10,  15. 

of  personal  property,  pp.  68,  121. 

of  real  estate,  p.  69. 

of  real  estate,  must  conform  to  law  where  real  estate 
ia  situated,  p.  182. 

power  of  disposition  by,  in  early  law,  p.  36. 


216  niDEX. 

Will — Continued. 

publication  of,  where  required,  pp.  60-64. 

qualities  of,  p.  152. 

references  to  wives  in,  pp.  11, 12,  110. 

restraints  on  marriage  in,  pp.  14,  105-108,  111. 

requisites  as  to  execution  of,  p.  55. 

right  to  make  did  not  exist  in  early  society,  p.  30. 

seal  not  required  in,  p.  52. 

signing  of,  how  under  Statute  of  Frauds,  p.  54. 

signing  of,  illustrated  in  cases,  pp.  56, 60. 

what  it  is  necessary  to  contain,  pp.  50,  51. 

witneases  to,  number  required,  p.  64. 
WidO'w — ^prohibited  remarrying  by  will,  p.  108. 

recommended  to  marry,  p.  13. 
"Widower — cannot  be  prohibited  remarrying  by  will,  p.  110. 
Witnesses — manner  of  signing  by,  pp.  64-66. 

number  required  in  different  States,  p.  64. 

cannot  take  interest  by  the  will,  p.  119. 

cutting  out  names  of  in  will,  effect  of,  p.  164. 


Zimmerman — will  of,  p,  10 


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